State v. Vega

• Decision Date: 17 March 1998
• Docket Number: No. 16850,16850
• Citation: 709 A.2d 28,48 Conn.App. 178
• Parties: STATE of Connecticut v. Fundador VEGA.
• Court: Connecticut Court of Appeals

Page 28

709 A.2d 28

48 Conn.App. 178

STATE of Connecticut v. Fundador VEGA.

No. 16850.

Appellate Court of Connecticut.

Argued Nov. 3, 1997.

Decided March 17, 1998.

Richard T. Meehan, Jr., Special Public Defender, for appellant (defendant).

C. Robert Satti, Jr., Senior Assistant State's Attorney, with whom, on the brief, were Jonathan C. Benedict, State's Attorney, and Donald A. Browne, Former State's Attorney, for appellee (State).

Before FOTI, LANDAU and DALY, JJ.

DALY, Judge.

The defendant, Fundador Vega, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a). ¹ The defendant claims that the trial court improperly (1) failed to charge the jury on the lesser included offenses of manslaughter in the first degree in violation of General Statutes § 53a-55 (a)(3), ² manslaughter in the second degree in violation of § 53a-56 (a)(1), ³ and criminally negligent homicide in violation of GENERAL STATUTES § 53A-58 (A), (2)⁴ admitted into evidence hearsay statements of the victim, and (3) admitted evidence of prior acts of physical abuse by the defendant against the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim and the defendant were married and had three children. The defendant also had a son from a previous marriage, J, who lived with his mother, the defendant's ex-wife, Evelyn Pinto. On Wednesday, November 9, 1994, the victim and the three children left their apartment on North Avenue in Bridgeport and went to live with Pinto and J at their home on Sheridan Street. On that day, J saw a revolver by the console of the defendant's car. He had never before seen his father in possession of a gun. That evening, while the defendant and J were working together at the defendant's cleaning business, the defendant inquired whether J had seen the victim and the children. J did not reveal their whereabouts.

On November 10, 1994, the defendant reported to the Bridgeport police that his wife and three children were missing and that his wife was having an affair with another man. That evening, Officer Kenneth Kubel was dispatched to the Sheridan Street apartment where he spoke to the victim. He observed a scratch and a bruise on her left cheek. The officer then returned to police headquarters where he spoke to the defendant. The defendant stated that he had visited the Sheridan Street apartment and that he and the victim had argued about the defendant's belief that she was cheating on him. The defendant reported that the victim tore his jacket and tore from his body a gold chain and watch.

On November 11, 1994, the defendant drove the victim and two of their children to the North Avenue apartment. En route, the defendant asked the victim if she would come back and live with him, and the victim refused. When the family arrived at the apartment, the victim began to pack the children's clothes. While the defendant, the victim, two of their children, and the defendant's stepdaughter were in a bedroom in the apartment, the defendant again asked the victim whether she would return to live with him. The victim again refused, whereupon the defendant retrieved the gun, returned to the bedroom and shot the victim four times.

Later that day, the defendant surrendered to the police in Brooklyn, New York. He admitted buying the murder weapon on the street for $150. He stated that he was in love with his wife but that he felt she was having affairs with other men. He claimed that he shot the victim when she told him she would no longer let him see their children. At trial, the defendant presented evidence that he suffered severe brain damage as a result of an automobile accident and that this injury affected his self-control. This, combined with the fear of losing his children, precipitated the shooting.

I

The defendant first claims that the trial court improperly denied his request to charge the jury on the lesser included offenses of manslaughter in the first degree, manslaughter in the second degree and criminally negligent homicide. We note at the outset that manslaughter in the first and second degrees and criminally negligent homicide are lesser included offenses within the crime of murder. State v. Edwards, 214 Conn. 57, 63, 570 A.2d 193 (1990).

" 'There is no fundamental constitutional right to a jury instruction on every lesser included offense'; State v. Whistnant, 179 Conn. 576, 583, 427 A.2d 414 (1980); rather, the right to such an instruction is purely a matter of our common law. 'A defendant is entitled to an instruction on a lesser [included] offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.' Id., at 588, 427 A.2d 414." State v. Tomasko, 238 Conn. 253, 260, 681 A.2d 922 (1996).

As required by Whistnant, we first consider whether the defendant's request to charge constituted an appropriate instruction. "A proposed instruction on a lesser included offense constitutes an appropriate instruction for purposes of the first prong of Whistnant if it complies with Practice Book § 854." (Internal quotation marks omitted.) State v. Tomasko, supra, 238 Conn. at 261, 681 A.2d 922. At the time of the trial in this case, § 854 provided in relevant part that "[w]hen there are several requests, they shall be in separate numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and, the evidence to which the proposition would apply...." "We have held that, in the context of a written request to charge on a lesser included offense, this requirement of § 854 [that the request state the supporting evidence] is met only if the proposed request contains such a complete statement of the essential facts as would have justified the court in charging in the form requested.... State v. Hall, 213 Conn. 579, 591, 569 A.2d 534 (1990)." (Internal quotation marks omitted.) State v. Tomasko, supra, at 261-62, 681 A.2d 922. ⁵

The defendant's written request to charge on the lesser included offenses was a mere recitation of the pertinent statutory sections. ⁶ The defendant simply asked the court to instruct the jury that it could consider the lesser included offenses of manslaughter in the first and second degrees and criminally negligent homicide. The defendant did not include any citation of authority or enumerate those facts that he believed supported the requested charge. His failure to do so is fatal to his claim. See State v. Ostroski, 201 Conn. 534, 558, 518 A.2d 915 (1986); State v. McIntosh, 199 Conn. 155, 159, 506 A.2d 104 (1986). The request in this case, like the request in State v. McIntosh, supra, at 161, 506 A.2d 104, "contains nothing more than a skeletal list of statutory subsections." "While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved ... the ever increasing refinement of our law justifies cooperation of counsel in stating requests for jury instruction. The minor burden of cooperation imposed by [Practice Book § 854] is neither unreasonable nor novel." (Internal quotation marks omitted.) State v. Tomasko, supra, 238 Conn. at 262, 681 A.2d 922.

The defendant argues that, although the request to charge was not supported by a detailed statement of facts, it is nonetheless improper for a court to fail to charge on lesser included offenses when the evidence warrants it. The defendant contends that there was significant evidence before the trial court to support the requested charge. Specifically, the defendant contends that there was evidence at trial that he suffered brain damage as a result of a motor vehicle accident. He points out that his ability to form the specific intent necessary for the crime of murder was an issue in the case on the basis of this evidence. Accordingly, he argues that the court should have instructed the jury on the lesser included offenses for the same reasons it instructed the jury on the defenses of diminished capacity and extreme emotional disturbance. In this regard, we note again that "[t]here is no fundamental constitutional right to a jury instruction on every lesser included offense suggested by the evidence.... It is therefore incumbent on the defendant to request such an instruction." State v. Whistnant, supra, 179 Conn. at 583, 427 A.2d 414. Moreover, we are not persuaded that a trial court's awareness of the factual basis for a requested charge, even if proven, constitutes an acceptable alternative to a party's compliance with the rules of practice. See State v. Ramirez, 16 Conn.App. 284, 289, 547 A.2d 559, cert. denied, 209 Conn. 828, 552 A.2d 434 (1988). The defendant failed to make a proper request for an instruction on the lesser included offenses under the first prong of Whistnant. Accordingly, the trial court's refusal to charge was justified.

II

The defendant next claims that the trial court improperly admitted into evidence statements of the victim that either constituted hearsay or were irrelevant. We agree with the defendant, but conclude that the introduction of the victim's statements was harmless.

The facts relevant to this claim are as follows. Kubel testified on direct examination by the state that when he...