State v. Rigual

• Decision Date: 14 July 1998
• Docket Number: No. 16019,16019
• Citation: 714 A.2d 707,49 Conn.App. 420
• Parties: STATE of Connecticut v. Antonio RIGUAL.
• Court: Connecticut Court of Appeals

Page 707

714 A.2d 707

49 Conn.App. 420

STATE of Connecticut v. Antonio RIGUAL.

No. 16019.

Appellate Court of Connecticut.

Argued March 23, 1998.

Decided July 14, 1998.

G. Douglas Nash, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Assistant State's Attorney, with whom, on the brief, were Jonathan C. Benedict, State's Attorney, and C. Robert Satti, Jr., Assistant State's Attorney, for appellee (State).

Before FOTI, LANDAU and SULLIVAN, JJ.

SULLIVAN, Judge.

The defendant, Antonio Rigual, appeals from the judgment of conviction, rendered after a jury trial, of attempted assault of a peace officer in violation of General Statutes §§ 53a-49 ¹ and 53a-167c (a)(1) ² and the commission of a felony with a firearm in violation of General Statutes § 53-202k. ³ On appeal, the defendant claims that the trial court improperly (1) instructed the jury on self-defense, (2) denied the defendant's motion to require the state to provide a race neutral reason for the exercise of a peremptory challenge to a prospective juror, and (3) sentenced the defendant under § 53-202k.

The jury reasonably could have found the following facts. On the afternoon of February 23, 1995, Detectives Richard Donaldson and Robert Martin of the Bridgeport police department were investigating a homicide that occurred the day before. In the course of their investigation, they were informed that Albert Aponte was one of the persons responsible for the crime. They were searching for Aponte when they saw him on the porch of a house in the Park Terrace area. When Aponte saw Donaldson, Aponte went into the house and closed the door. The two detectives got out of their car intending to arrest Aponte on outstanding warrants and to question him about the homicide. Martin ran into the house and Donaldson ran to the rear of it.

Martin looked for Aponte on the second and third floors of the house but did not find him. While in the rear of the house, Donaldson saw the defendant on the second floor porch landing. Donaldson, who was carrying a hand-held police radio, pointed to the radio and said, "Don't move, police." The defendant ran to the other end of the porch. Donaldson told the defendant, "Stop, police. Get on the ground, get on the ground." Donaldson then drew his gun and the defendant went into the house through a window. The defendant then came back onto the porch, through the window, and Donaldson told him again, "Get on the ground, police." The defendant said "fuck you" and went back into the house through the window. Donaldson then yelled for Martin and, as he did, he heard a shot. When Donaldson looked up, he saw the defendant leaning over the rail and firing at him. Donaldson and the defendant fired shots at each other. Donaldson used his radio to call for assistance.

Martin heard Donaldson yell, "Bob, get back here, Bob, get back here." When Martin reached the rear of the house he heard shots and saw a male shooting at Donaldson from the second floor. When Martin could no longer see Donaldson or the defendant, and when the shooting had stopped, he returned to the front of the house and fired one shot at a person who he thought was shooting at Donaldson.

As Donaldson was reloading his weapon, the defendant ran down the porch stairs yelling, "I got you now, you fucking pig." When the defendant saw that Donaldson had his gun loaded, he ran back up the stairs. As he did, Donaldson fired three more shots and wounded the defendant. At this point, more police officers arrived at the scene.

I

The defendant's first claim is that the trial court improperly charged the jury on self-defense by instructing that, if Donaldson was identifiable as a police officer, the defendant "had no right to use any force whatsoever." The defendant asserts that this created a per se exclusion to the defense that is unsupported by General Statutes § 53a-19 ⁴ or the common law. The defendant claims that he was acting in defense of himself and also in defense of the other occupants of the house where the confrontation occurred.

The standard of review to be applied to the defendant's claim is whether it is reasonably possible that the jury was misled by the court's instruction. State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994); State v. Corchado, 188 Conn. 653, 661, 453 A.2d 427 (1982). "In determining whether it was indeed reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case." (Internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

In its charge to the jury, the court read the relevant parts of the self-defense statute and then stated the following: "Under Connecticut's self-defense statute, a person may justifiably use deadly physical force in self-defense if he reasonably believes both (1) his attacker is using or about to use deadly physical force against him or another or is inflicting or about to inflict great bodily harm, and (2)--they have to find (1)--and (2) that deadly physical force is necessary to repel such attack. The test which you, the jury, must apply in analyzing the second requirement that the defendant reasonably believed that deadly force as opposed to some lesser degree of force was necessary to repel an alleged attack is what the courts have referred to as a subjective-objective one. You must view the situation from the perspective of [the defendant], and the law requires that his belief ultimately must be found to have been reasonable. The subjective-objective inquiry into the defendant's belief regarding the necessary degree of force requires that you the jury make two separate affirmative determinations in order for [the defendant's] claim of self-defense to succeed. You must determine first whether on the basis of all the evidence presented, he in fact did believe that he needed to use deadly physical force as opposed to some lesser degree of force in order to repel the alleged attack by the police. Your initial determination, therefore, requires that you assess the veracity of all witnesses, including [the defendant], and determine whether [the defendant's] account of his belief and the necessity to use deadly force at the time of the confrontation with Detective Donaldson is in fact credible. If you determine that [the defendant] did not believe at the time of the incident that he had needed to employ deadly physical force to repel Detective Donaldson, your inquiry ends and the defendant's self-defense claim must fail. If you determine that [the defendant] in fact did believe that the use of deadly force was necessary to preserve his own life and the lives of others, you must then make a further determination; that is, whether that belief was reasonable from the perspective of a reasonable person in [the defendant's] circumstance.

"Thus, to summarize, if you find that [the defendant] did in fact believe that the use of deadly force in this case was necessary to preserve his own life or the lives of others, and if you also find that his belief was reasonable under the circumstances, then he has prevailed on his self-defense claim, and you must find him not guilty of the charges. If, however, you determine that [the defendant] did not believe that the use of deadly force was necessary or that [the defendant's] honest belief that he needed to use deadly force instead of some lesser degree of force was not a reasonable belief, then he is not entitled to the protection of the Connecticut self-defense law.

"Further, if you are satisfied that [the defendant] reasonably would have identified the officer as a police officer under all those circumstances, then he had no right to use any force whatsoever, but his obligation then was to accede to the request of the police officer." (Emphasis added.) This sentence is at the heart of the defendant's claim.

The above statement was supplemented, however, by a further charge to the jury on self-defense. "While it is true that an instruction containing a misstatement of the law is more likely to be prejudicial than an instruction that contains an omission or an incomplete statement of the law ... an incorrect instruction to the jury may be cured by a later correct instruction...." (Internal quotation marks omitted.) State v. Brown 35 Conn.App. 699, 707, 647 A.2d 17, cert. denied, 231 Conn. 932, 649 A.2d 254 (1994).

In its recharge on the matter of self-defense, the court stated to the jury: "Now, can he come out and engage in conduct with the person that he did, and can he continue to escalate the defense by returning to the dwelling, obtaining what he did, and coming back out and was then firing a gun at the person in the back yard. Your determination as to what his knowledge was is most important. Does he have any knowledge in his own mind at that time from the evidence in this case? What do you believe? Did he know that Detective Donaldson was a police officer or did he not know he was a police officer? And you bring to bear upon that all other evidence in the case, including the defendant's testimony that he didn't know, and that Officer Donaldson did not tell him get down or sit down, but that he merely fired bullets at him and said other things which didn't allow this man to conclude they were not acting as police officers.

"Now, these are things for you to determine, and they bear on the defense of self-defense. If he had no knowledge that he was under an attack by unknown persons coming to assaultive behavior on the dwelling that he was located in, then he is entitled to the defense of self-defense if everything in accordance with his principles, but he doesn't have to prove that; the state has to disprove by satisfying you beyond all reasonable doubt...