State v. Rios, AC 36987

• Decision Date: 28 February 2017
• Docket Number: AC 36987
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Alberto RIOS

171 Conn.App. 1

156 A.3d 18

STATE of Connecticut

v.Alberto RIOS

AC 36987

Appellate Court of Connecticut.

Argued September 19, 2016

Officially released February 28, 2017

Mary A. Beattie, assigned counsel, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Pamela J. Esposito, senior assistant state's attorney, for the appellee (state).

DiPentima, C.J., and Prescott and Gruendel, Js.

PRESCOTT, J.

The defendant, Alberto Rios, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a–59(a)(1), assault in the second degree in violation of General Statutes § 53a–60(a)(2), and three counts of reckless endangerment in the first degree in violation of General Statutes § 53a–63(a).¹ On appeal, the defendant claims that (1) the trial court improperly denied his motion to set aside the verdict and for a new trial because the jury's verdict on several counts was legally inconsistent, and he was not afforded sufficient notice of the charges brought against him, (2) the trial court improperly permitted the state to question the defendant about the credibility of another witness and the defendant's tattoos, (3) the trial court improperly instructed the jury regarding the scope of his duty to retreat before engaging in self-defense, (4) prosecutorial improprieties during the trial deprived him of due process, and (5) this court should exercise its supervisory authority over the administration of justice and order a new trial because of the prosecutor's alleged pattern of improper conduct in this case and other cases. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the spring of 2013, Edwin Nunez lived with his girlfriend, Jessica Sanchez (Jessica), in her apartment near the corner of Washington Avenue and Coleman Street in Bridgeport. Jessica and her sister, Erica Sanchez (Erica), had known the defendant since childhood, and Erica and the defendant had previously dated. The defendant lived on Olive Street in Bridgeport. The defendant lived in the same neighborhood as Lucy Lucasio, the mother of Jessica and Erica, who knew the defendant because he had dated Erica.

On April 22, 2013, the defendant sent Nunez a threatening message via Facebook. Prior to receiving this message, Nunez did not know the defendant. Although the message did not contain the defendant's name, the message was accompanied by a photograph of the defendant. In the message and in subsequent messages between Nunez and the defendant, the defendant threatened to harm Nunez and indicated that he previously had assaulted Erica and members of her family, had set Lucasio's house on fire, and had accused Erica of cheating on him.

Nunez asked Erica about the messages, and she identified the defendant as the true sender of them. Nunez also was aware that there was "bad blood" between Erica's family and the defendant. As a result of these messages, which also disparaged Jessica, Nunez concluded that he had to "stick up" for Jessica and wanted to call the defendant's "bluff." Accordingly, he arranged to meet the defendant near the corner of Washington Avenue and Coleman Street, but did not take the defendant's threats seriously because, in his view, people often "say stuff on the Internet, and they don't mean it." Shortly before going outside to meet the defendant, Nunez received a call from Erica in which she indicated that she had just received a threat from the defendant.

Nunez left his apartment in the middle of the day to meet the defendant at the street corner, but did not take a weapon with him. Nunez observed the defendant, alone in his vehicle, drive by him, after which Nunez immediately received a Facebook message on his phone from the defendant, asking him: "What are you doing out in the open? I like to get away with crime." Shortly thereafter, Jessica joined Nunez outside on the sidewalk near Washington Avenue.

Five or ten minutes later, the defendant returned in his vehicle, this time accompanied by a passenger who was later identified as Robert McDougall. Although Nunez had temporarily turned his back to the street, Jessica observed the defendant accelerate his car toward them. The defendant drove the vehicle directly at Nunez and Jessica while accelerating, striking them both. Nunez was propelled onto the hood of the car, off its windshield, and against a wall. Following the crash, the defendant and McDougall exited the vehicle. McDougall fled the scene, but the defendant immediately approached Nunez, got on top of him, and began punching him in the face. Jessica, who was not as seriously injured as Nunez, pulled the defendant off of Nunez. The defendant left the scene on foot before the police arrived.

Both Jessica and Nunez were taken to the hospital. Jessica received four stitches to mend a laceration on her lip

. Nunez had surgery to repair a broken arm and leg, and never fully regained mobility in his arm and leg due to the serious trauma to his limbs.

The defendant was arrested and ultimately charged in a five count amended information as follows. In count one, the defendant was charged with assault in the first degree by using his motor vehicle, a dangerous instrument, to strike Nunez with the intent to cause serious physical injury to him in violation of § 53a–59(a)(1). In count two, the defendant was charged with assault in the second degree arising from the same conduct as alleged in count one, the difference being that, with the intent to cause serious physical injuries to Nunez, he caused serious physical injury to Jessica in violation of § 53a–60(a)(2). In counts three, four, and five, the defendant was charged with reckless endangerment in the first degree for engaging in unspecified reckless conduct with extreme indifference to human life, which created a risk of serious injury to Jessica, Nunez, and McDougall, respectively, in violation of § 53a–63(a).

At trial, the defendant testified that he drove toward Nunez in self-defense. He asserted that it had been Nunez who had threatened him, and that, as he approached Nunez and Jessica, he observed Nunez reaching into his coat toward his waistband for what he believed was a gun. The defendant testified that he believed that he was going to "get shot" and that he instinctively attempted to protect himself by driving the car toward Nunez.

The jury returned a verdict of guilty on all five counts.² This appeal followed. Additional facts and procedural history will be set forth later as necessary to address the specific claims of the defendant.

I

The defendant first claims that the court improperly denied his motion to set aside the verdict and for a new trial. The defendant's claim on appeal is twofold. First, he argues that the verdict on counts one, two, and four is legally inconsistent. Specifically, the defendant argues that the jury's necessary conclusion that he had engaged in an intentional assault of Nunez and Jessica as charged in counts one and two, is legally inconsistent with its conclusion that he recklessly engaged in conduct that created a risk of serious physical injury to Nunez, as charged in count four of the amended information. In response, the state argues that the verdict is not legally inconsistent because a "plausible theory" exists under which the jury reasonably could have found the defendant guilty of all three offenses. The state's "plausible theory" is that the defendant's conviction on counts one and two was based on his conduct in steering his automobile directly into Nunez and Jessica, whereas his conviction on count four was based upon his postcrash conduct during which the defendant exited the vehicle and proceeded to punch Nunez in the face while he lay on the ground already seriously injured.

Second, the defendant argues on appeal that he lacked constitutionally sufficient notice of the charges of which he could be convicted because the state's theory of the case at trial was never that he acted recklessly in harming the victims but, instead, that he was on a "hunting mission" and intended to assault Nunez. The state counters that its theory of the case was not limited to the defendant's intentional assault but, instead, included a theory that the defendant, after he had intentionally assaulted Nunez and Jessica, recklessly engaged in conduct that created a risk of serious harm to Nunez by exiting his vehicle and punching Nunez. For the reasons subsequently set forth, we disagree with the defendant's assertions.

The following facts and procedural history are relevant to these claims. At trial, the state called Nunez to testify, and he described the defendant's conduct prior to and after the defendant crashed into him and Jessica with his vehicle. Specifically, Nunez testified that he was "flipped over" by a speeding vehicle driven by the defendant and "landed near the building" he was standing by with Jessica. After Nunez landed, he heard Jessica "screaming" and then witnessed the defendant approach him. Nunez stated that the defendant got on top of him and struck him with his fists while he lay seriously injured from being struck by the defendant's vehicle. In addition to Nunez' testimony, other evidence was introduced that described the defendant's post-crash conduct, including the testimony of Jan Zolotov, an eyewitness, who described the event in similar terms.³

Following the conclusion of trial, the defendant filed a motion to set aside the verdict and for a new trial. In support of his motion, the defendant argued that the verdict on counts one and two required proof of a mental state legally inconsistent with that required to find him guilty on count four. Specifically, the defendant argued that his conviction under counts one and two is legally inconsistent with the conviction under count four because the first two counts required the...