State v. Rodriguez

• Decision Date: 04 August 1998
• Docket Number: No. 16218,16218
• Citation: 716 A.2d 914,49 Conn.App. 606
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Harry RODRIGUEZ.

Page 914

716 A.2d 914

49 Conn.App. 606

STATE of Connecticut v. Harry RODRIGUEZ.

No. 16218.

Appellate Court of Connecticut.

Argued April 29, 1998.

Decided Aug. 4, 1998.

Neal Cone, Assistant Public Defender, for appellant (defendant).

Susann E. Gill, Senior Assistant State's Attorney, with whom, on the brief, were Jonathan C. Benedict, State's Attorney, and Gerard P. Eisenman, Senior Assistant State's Attorney, for appellee (State).

Before EDWARD Y. O'CONNELL, C.J., and SCHALLER and HEALEY, JJ.

SCHALLER, Judge.

The defendant, Harry Rodriguez, 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), commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k and carrying a pistol without a permit in violation of General Statutes § 29-35(a). On appeal, the defendant claims that the trial court improperly (1) instructed one panel of venirepersons in its preliminary remarks concerning the presumption of innocence, and (2) instructed the jury concerning the finding of an affirmative fact from its denial by a witness. ¹ We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 21, 1995, Colleen Bachard, the victim, visited the defendant at his house on Stillman Street in Bridgeport. Bachard and the defendant began to argue when she noticed "hickeys" on the defendant's neck. Bachard left the defendant's house and subsequently joined the defendant's sister, Maria Perez, and Perez' friend, Christina Santiago. Bachard then walked to the corner of Berkshire and East Main Streets accompanied by the two women. Bachard testified that she was going to the corner to meet a woman named Melissa who she suspected was responsible for the hickeys on the defendant's neck.

While the women were waiting on the street corner, the defendant rode up on a bicycle. The defendant and Bachard began arguing again. The argument escalated and Bachard and the defendant began to exchange blows. While Bachard and the defendant were fighting, a friend of Bachard's, Carlos Diaz, and his passenger, Brian Puffen, drove by in Diaz' car. Seeing the altercation, Diaz turned his car around and came back. As Bachard began to walk into the street, signaling to Diaz, the defendant shouted that if she kept on walking, he was going to shoot her. Immediately thereafter, four shots were fired. Bachard fell to the ground bleeding from a bullet wound to her neck. Several police officers responded to the scene almost immediately. By the time the police arrived, however, the defendant had fled on his bicycle. Bachard was taken to a hospital where she was treated and released nine days later.

The state charged the defendant with attempted murder in violation of General Statutes § § 53a-54a and 53a-49, ² assault in the first degree in violation of General Statutes § 53a-59 (a)(1), ³ commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k ⁴ and carrying a pistol without a permit in violation of General Statutes § 29-35(a). ⁵ At trial, the defendant alleged that he had been shooting at Diaz in self-defense and struck Bachard by mistake. To support his self-defense claim, the defendant presented testimony of his sister, Perez, that after Diaz parked the car he got out and shot at least two times over the hood of the car at the defendant before the defendant returned fire. In addition, the defendant presented expert testimony showing that gunshot residue was found in various locations on the interior of Diaz' car.

On March 13, 1996, the jury found the defendant not guilty of the crime of attempted murder but guilty of the crime of assault in the first degree. The jury also found the defendant guilty of carrying a pistol without a permit and commission of a class A, B or C felony with a firearm. The trial court sentenced the defendant to twenty years imprisonment suspended after fifteen years and five years probation on the charge of assault in the first degree, five years imprisonment to run consecutively on the charge of commission of a felony with a firearm, and five years imprisonment to run concurrently on the charge of carrying a pistol without a permit. ⁶ This appeal followed.

I

The defendant first claims that the trial court improperly instructed a panel of potential jurors concerning the presumption of innocence. Specifically, the defendant claims that the trial court, by one statement in its preliminary remarks to a panel of potential jurors, undermined the presumption of innocence and violated his constitutional rights to due process of law, to an impartial jury, to present a defense and to confront adverse witnesses. ⁷ We do not agree.

In its preliminary remarks, the trial court gave a brief overview of the component parts of the trial, instructed the potential jurors to keep an open mind throughout the trial and attempted to quell any fears they might have about being adequate for the task. The trial court also offered a preliminary explanation of the concept of the presumption of innocence. ⁸ Two members of this panel of venirepersons became jurors.

The defendant failed to raise this claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), ⁹ or, alternatively, under the plain error doctrine. "A defendant may prevail under the third prong of Golding on a claim of instructional error only if, considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.... Moreover this court will reverse a judgment for plain error only in the truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." (Citations omitted; internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 457, 680 A.2d 147 (1996). We conclude that the defendant cannot prevail under either of these standards.

"Preliminary instructions to prospective jurors in a criminal case are not mandatory.... When preliminary instructions are given, they do not supersede those given after evidence and arguments under our practice." (Citations omitted; internal quotation marks omitted.) State v. Figueroa, 235 Conn. 145, 184, 665 A.2d 63 (1995). Analogous to those situations where a court attempts to clarify the phrase reasonable doubt, judicial attempts to clarify the meaning of the phrase presumption of innocence by explanation, elaboration or illustration may tend to confuse or mislead; however, such explanations do not necessarily constitute reversible error. State v. Webb, supra, 238 Conn. at 457, 680 A.2d 147; State v. Figueroa, supra, at 184, 665 A.2d 63; State v. DelVecchio, 191 Conn. 412, 420, 464 A.2d 813 (1983). The question on appeal is whether the court's statements correctly conveyed the concept of presumption of innocence to the jury. " 'In determining whether preliminary jury instructions require reversal, we must ask whether the jury was fully and properly instructed at the critical time, after all the evidence and after the arguments of counsel.' " State v. Webb, supra, at 457, 680 A.2d 147.

In its final instructions, the trial court informed the jury that "[i]n this case, as in all criminal cases, the accused is presumed to be innocent until he is proven guilty. That means that at the moment when he was presented here before you for trial, he is free from any bias, prejudice or burden arising from his position as the accused. He was then innocent and he remains innocent until such time as the evidence presented in the ordinary course of this trial, here in this courtroom, satisfies you that he is guilty." The trial court specifically told the jury, "You must not consider the information as evidence of guilt or draw any inference of guilt from the fact that the accused was--has been arrested and charged. The arrest is as consistent with innocence as it is with any other concept." The trial court also instructed the jury that the state has the burden of proving the guilt of the accused, and that the accused does not have to prove his innocence. The trial court explained that "[t]he law presumes a defendant to be innocent of the crime, thus, a defendant--although the accused begins the trial with a clean slate, with no evidence against him, and the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused." The trial court further instructed that "the presumption alone--of innocence--alone is sufficient to acquit a defendant unless the jurors are satisfied beyond a reasonable doubt of his guilt after a careful and impartial consideration of all the evidence in the case." The trial court then went on to explain the concept of reasonable doubt.

Our review of the entire record in this case persuades us that the defendant was not prejudiced by the trial court's preliminary instruction that it "has been determined by a magistrate of this court that the crime charged probably was committed and that the accused probably had something to do with it." The jury was fully and correctly instructed as to the principles of the defendant's presumption of innocence and the state's burden of proof beyond a reasonable doubt at final instructions. ¹⁰ Therefore, the defendant was not deprived of his constitutional right to a fair trial, and may not prevail under State v. Golding, supra, 213 Conn at 239-40, 567 A.2d 823, because he has not demonstrated that an error of constitutional magnitude clearly exists. State v. Webb, supra, 238 Conn. at 458, 680 A.2d 147; State v. Figueroa, supra, 235 Conn. at 184-85, 665 A.2d 63. Similarly, the trial court's preliminary instructions did not affect the fairness and integrity of and public confidence in the judicial proceedings and,...