State v. Ruiz-Pacheco

• Decision Date: 25 September 2018
• Docket Number: AC 39605
• Citation: 185 Conn.App. 1,196 A.3d 805
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Joesenier RUIZ-PACHECO

185 Conn.App. 1

196 A.3d 805

STATE of Connecticut

v.Joesenier RUIZ-PACHECO

AC 39605

Appellate Court of Connecticut.

Argued November 28, 2017

Officially released September 25, 2018

Pamela S. Nagy, assistant public defender, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, Warren C. Murray, supervisory assistant state's attorney, and Laurie N. Feldman, special deputy assistant state's attorney, for the appellee (state).

Prescott, Elgo and Harper, Js.

ELGO, J.

The defendant, Joesenier Ruiz-Pacheco, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree as a principal in violation of General Statutes § 53a-59 (a) (1), two counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-59 (a) (1) and 53a-8, one count of attempt to commit murder in violation of General Statutes § 53a-54, and one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48.¹ On appeal, the defendant claims that (1) his conviction of the assault counts violates the double jeopardy clause; (2) the jury instructions on attempted murder were improper; (3) the court's repeated instruction that the jury should consider the lesser included offenses even if the state failed to disprove self-defense on the greater offenses misled the jury; and (4) he was deprived of a fair trial due to prosecutorial improprieties that affected the critical issues of self-defense and third-party culpability. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendant's appeal. On November 30, 2012, the defendant went to El Milenio, a nightclub in Danbury, with his brother, Eliezer, and his friends, Raymond Martinez and Eiliana Martinez. A group of women, Dumilka Adames, Samantha Medina, Petra Mendez, Carina Amaro, and Rita Santos, also attended the nightclub. At approximately 2 a.m. on December 1, 2012, the nightclub closed and the group of women walked to their cars, which were parked in the adjacent C-Town grocery store parking lot. Kenneth Tucker, who had attended a different nightclub, was waiting in the parking lot to meet up with the group of women. The defendant and his associates also walked to the C-Town grocery store parking lot. Adames got into Santos' car with Tucker. Medina and Mendez got into Amaro's car.

At some point, the defendant and Eliezer approached Amaro's car. Eliezer and Mendez exchanged words.

Medina, the defendant's former girlfriend, got out of the car and argued with him. The defendant then punched Medina in the face and put her in a headlock. Other people in the parking lot, including Tucker and Luis Rodriguez, another bystander, saw the defendant put Medina in a headlock. Medina yelled at the defendant to let her go. Tucker punched the defendant, and the defendant released Medina from the headlock. Tucker, the defendant and Eliezer then immediately began to fight with their fists. Rodriguez also entered the fray after he saw the defendant hit Medina. At some point during the fight, the defendant and Eliezer went to their car to arm themselves; Eliezer obtained a knife for himself from the car and handed a knife to the defendant. Tucker and Rodriguez were unarmed. Throughout the course of the fight in the parking lot, the defendant and Eliezer stabbed Tucker multiple times. The defendant also stabbed Rodriguez two or three times. When the defendant and Eliezer walked away, Rodriguez said something to the brothers. In response, the defendant and Eliezer ran after Rodriguez, and Eliezer stabbed Rodriguez in the back. After Eliezer stabbed him, Rodriguez tumbled down a portion of grass between the parking lot and the sidewalk. The defendant then approached Rodriguez, who was in the street unable to move as a result of his injuries, stabbed him in the left side of the chest and said: "This is for hitting my brother." The defendant and Eliezer thereafter fled the scene together in a vehicle.

Two off-duty police officers witnessed a portion of the fight and rendered medical assistance to Rodriguez after he was stabbed. Rodriguez sustained five stab wounds

and Tucker sustained three stab wounds.

The defendant was arrested later that night. The police took the defendant's statement in which the defendant admitted that he "stabbed a person in self-defense ...." The state charged the defendant with two counts of assault in the first degree as a principal in violation of § 53a-59 (a) (1), two counts of assault in the first degree as an accessory in violation of §§ 53a-59 (a) (1) and 53a-8, two counts of attempted murder in violation of § 53a-54, and two counts of conspiracy to commit first degree assault in violation of §§ 53a-59 (a) (1) and 53a-48. At trial, the state presented eyewitness testimony, including that of Mendez, Adames, Tucker, Rodriguez, Liybin Fernandez, Officer Kristin Lindstrom, and Officer David Dubord. Following a jury trial, the defendant was found guilty on all counts except for one count of attempted murder (count five), and the jury's guilty verdict on one count of conspiracy to commit assault in the first degree (count eight) was vacated at sentencing.² This appeal followed.

I

The defendant first claims that his conviction of assault in the first degree as a principal pursuant to counts two and six of the information, and assault in the first degree as an accessory pursuant to counts three and seven of the information, violates his fifth and fourteenth amendment right against double jeopardy. Accordingly, he contends that his conviction of the two counts of assault as an accessory should be vacated. The state argues that because the defendant's conviction of the four counts was based on different acts, his double jeopardy rights were not violated. We agree with the state.

The following additional facts are relevant to our resolution of the defendant's claim. The information in the present case charged the defendant with four separate counts of first degree assault. In relevant part, the information contained one count each of assault in the first degree as a principal and assault in the first degree as an accessory with respect to the stabbing injuries suffered by Rodriguez,³ and separate counts of assault in the first degree as a principal and assault in the first degree as an accessory with respect to the stabbing injuries sustained by Tucker.⁴ The defendant never sought a bill of particulars.

In discussing the nature of the charges in its closing argument, the state argued that there were many possible combinations whenever there are at least two persons stabbing two victims and that multiple counts were appropriate in this case "to accommodate all those situations." The state argued that there was evidence that both the defendant and his brother, Eliezer, armed themselves with knives during the conflict and that both victims were stabbed multiple times. According to the prosecutor, the jury had the obligation of sorting out the conflicting evidence presented and to determine whether the defendant himself had stabbed both victims or had helped his brother stab the victims "just by being there with the knife himself." The state did not expressly rule out that some combination was also possible. In fact, at no time did the state suggest to the jury that it was proceeding on a theory of alternative liability or that the jury was limited to finding the defendant guilty either solely as a principal or solely as an accessory with respect to the two victims.

In her closing argument, defense counsel also noted the conflicting evidence that existed with respect to who had stabbed each of the victims and argued that it was the jury's duty to reach a determination on the basis of the evidence before it. The defense theory was that it was Eliezer who stabbed the victims, not the defendant, but that if the jury found otherwise, it should still find the defendant not guilty because he had acted in self-defense or in defense of others. At no point did the defense argue to the jury that if it found the defendant guilty of assaulting the victims as a principal, it could not also find him guilty of acting as an accessory.

In its instructions to the jury regarding the charges against the defendant, the court told the jury that the defendant was "entitled to and must be given by you a separate and independent determination of whether he's guilty or not guilty as to each of the counts" charged, and that "[e]ach of the counts charged is a separate crime." The defendant did not object to the instruction given by the court or ask for clarification about whether he potentially could be found guilty on all counts or whether certain counts were pleaded only in the alternative.

With that background in mind, we address the reviewability of the defendant's claim. The defendant acknowledges that he failed to raise any double jeopardy claim before the trial court and, thus, seeks review of his claim pursuant to State v. Golding , 213 Conn. 233, 567 A.2d 823 (1989). Golding provides that "[a] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail." (Emphasis omitted; footnote omitted.) Id., at 239–40, 567 A.2d 823 ; see In re Yasiel R ., 317...