State v. Ramos, (SC 16318).

• Court: Supreme Court of Connecticut
• Writing for the Court: KATZ, J.
• Citation: 801 A.2d 788,261 Conn. 156
• Parties: STATE OF CONNECTICUT v. JORGE RAMOS
• Docket Number: (SC 16318).
• Decision Date: 30 July 2002

261 Conn. 156
801 A.2d 788

STATE OF CONNECTICUT
v.
JORGE RAMOS

(SC 16318).

Supreme Court of Connecticut.

Argued April 17, 2002.

Officially released July 30, 2002.

Borden, Katz, Palmer, Vertefeuille and Zarella, Js.

261 Conn. 157

Adele V. Patterson, assistant public defender, for the appellant (defendant)

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Donna Mambrino and Sandra L. Tullius, senior assistant state's attorneys, for the appellee (state).

261 Conn. 158

Opinion

KATZ, J.

The defendant, Jorge Ramos, appeals from the judgment of conviction, rendered after a jury trial, of two counts of murder in violation of General Statutes § 53a-54a,¹ one count of capital felony in violation of

261 Conn. 159

General Statutes § 53a-54b (8),² and one count of accessory to commit assault in the first degree in violation of General Statutes §§ 53a-8 (a) and 53a-59 (a) (5).³ The trial court rendered judgment in accordance with the jury verdict⁴ and the defendant appealed directly to this court pursuant to General Statutes § 51-199 (b).⁵ The defendant claims on appeal that the trial court improperly: (1) instructed the jury concerning the initial aggressor and provocation exceptions to self-defense; and (2) excluded certain testimony relating to street gangs, which the defendant offered to support his claim of self-defense. We reject the defendant's claims and affirm the judgment of the trial court

The jury reasonably could have found the following facts. On August 14, 1995, an altercation took place on

261 Conn. 160

School Street in Hartford between the defendant and his friend, German Montanez, on the one hand, and approximately eight other people, on the other hand. During the altercation, the defendant shot Angel Arce, Robert Brown and David Arce, Angel Arce's brother. Angel Arce and Brown died at the scene from their wounds; David Arce sustained injuries to his buttocks, but survived

The altercation began at approximately 9 p.m., when David Arce left an apartment on School Street, where he had been eating dinner with some friends, including Randy Medina. As David Arce left the apartment, he exchanged "hard" looks and words with Montanez, who was standing with the defendant outside the building across the street at 37-39 School Street. Animosity between the two stemmed from the fact that Montanez recently had started seeing David Arce's former girlfriend, Glorimel Rosa, who lived at 37-39 School Street. The defendant suggested that Montanez and David Arce go one-on-one in a fistfight to settle their differences. The defendant then showed David Arce a pistol that was in the waistband of his pants. David Arce declined the offer to fight and left the area.

Thereafter, Medina came out of the apartment. The defendant showed Medina the gun and advised him to tell David Arce to "chill out." Medina ran after David Arce to warn him about the defendant's threat. Five minutes later, David Arce returned to 37-39 School Street with approximately seven other people, including Angel Arce, Brown and Medina.

The defendant approached the group at the end of the driveway of the apartment building, holding his pistol in view. The defendant then exchanged words with the group, during which time he shoved and slapped Angel Arce. Pointing his pistol at the group, the defendant began backing up the driveway, toward

261 Conn. 161

the back parking lot of the apartment building. He attempted to fire the gun, but it jammed

As the group continued toward the back parking lot, Montanez ran into the apartment building to retrieve a 9 millimeter pistol. Thereafter, Montanez emerged from the back porch of the apartment building, and began firing his gun at the group. The defendant started shooting at the group as well, hitting Angel Arce once in the chest and hitting Brown in the arm, back and chest, killing them both.⁶ David Arce was shot in the buttocks, but survived the incident.

At trial, the defendant claimed that he had acted in self-defense, pursuant to General Statutes § 53a-19,⁷

261 Conn. 162

based on his belief that some of the individuals in the group were gang members. In support of this theory, the defendant sought to introduce evidence relating to the presence of the Latin Kings gang in the neighborhood surrounding School Street. The trial court ruled this evidence inadmissible. Throughout the trial, the state had contended that the defendant was not entitled to assert a claim of self-defense in accordance with § 53a-19 (c) because he had been either the initial aggressor in the incident or the person who had provoked it. See footnote 7 of this opinion. The trial court thereafter instructed the jury that the defendant could not prevail on his theory of self-defense if either of those two exceptions were satisfied. The jury returned a verdict of guilty on all counts and the court thereafter rendered judgment in accordance with the verdict. This appeal followed. Additional facts will be provided as necessary.

I

The defendant claims two improprieties with respect to the trial court's instructions to the jury. First, the defendant claims that the trial court gave an improper instruction with regard to the initial aggressor exception to the justification of self-defense, when it instructed the jury to use the ordinary meaning of the words "aggressor" and "aggression." Second, the defendant contends that the trial court gave a legally incorrect instruction to the jury regarding the provocation exception to self-defense. Specifically, the defendant contends that the instruction failed to inform the jury that the state must prove that, at the time of the provocation, the defendant had the specific intent to harm the eventual victim and not merely any resulting victim. We address each of these claims in turn.

261 Conn. 163

A

We first address the defendant's claim that the trial court improperly instructed the jury to use the ordinary, everyday meaning of the words "aggressor" and "aggression," when considering whether the defendant had been the initial aggressor, and, therefore, was not entitled to a claim of self-defense. Specifically, the defendant contends that the trial court should have given a legal definition of these terms following the jury's request for such a definition, and that the failure to do so reasonably could have misled the jury into concluding that the initial aggressor is the first person to use force. Because the victims' behavior consisted only of threatening actions rather than physical contact, the defendant claims that the trial court's instructions reasonably could have led the jury to conclude improperly that he must have been the initial aggressor, defeating his claim of self-defense. The defendant contends, therefore, that the trial court's instructions violated his right to a fair trial under the fourteenth amendment to the United States constitution.⁸ We disagree.

The following additional facts are necessary to our resolution of this claim. During closing arguments, the state asserted that the defendant had been the initial aggressor in the altercation.⁹ In his request to charge,

261 Conn. 164

the defendant submitted a jury instruction on self-defense that included the initial aggressor exception to that defense.¹⁰ The trial court, thereafter, instructed the jury on several exceptions to the justification of self-defense, including the initial aggressor exception. The court's instruction, in essence, mirrored the defendant's request to charge and provided in relevant part: "The initial aggressor is a person who first acts in such a manner that creates a reasonable belief in another person's mind that physical force is about to be used upon that other person or persons. The first person to use physical force is not necessarily the initial aggressor. Before an initial aggressor can use any physical force, the initial aggressor must withdraw or abandon the conflict in such a way that the fact of withdrawal is perceived by his opponent so that the opponent is aware that there is no longer any danger from the original aggression."

On the first day of deliberations, the jury foreperson submitted a written note to the trial court requesting that it provide a legal definition for the words "aggression" and "aggressor." The trial court informed the jury that its research had uncovered no relevant Connecticut

261 Conn. 165

authority providing a legal definition for the words. Accordingly, the trial court instructed the jury to use the ordinary meaning of the words.¹¹

The defendant concedes that he did not object to the trial court's instruction and, therefore, that this claim is unpreserved. Accordingly, he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).¹² The defendant has satisfied the first two prongs of Golding because an adequate record exists and "[a]n improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension." (Internal quotation marks omitted.) State v. Lemoine, 256 Conn. 193, 198-99, 770 A.2d 491 (2001). The defendant's claim fails under the third prong of Golding, however, because he has not demonstrated that the alleged constitutional violation exists.

We begin our analysis with the following well established principles. "[A] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . Therefore,

261 Conn. 166

[t]he charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . As long as...