State v. Weber

• Decision Date: 04 June 1993
• Docket Number: No. 11502,11502
• Citation: 623 A.2d 506,31 Conn.App. 58
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard WEBER.

Page 506

623 A.2d 506

31 Conn.App. 58

STATE of Connecticut v. Richard WEBER.

No. 11502.

Appellate Court of Connecticut.

Argued Feb. 8, 1993.

Decided April 20, 1993.

Certification Denied June 4, 1993.

Thomas Ullmann, Public Defender, for appellant (defendant).

Rita M. Shair, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and James Turcotte, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and DALY and FOTI, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60(a)(3), as a lesser included offense of assault in the first degree in violation of General Statutes § 53a-59(a)(1). The defendant claims that the trial court improperly (1) ruled that certain evidence was inadmissible, and (2) failed to instruct as he requested on the defense of property. We affirm the trial court's judgment.

The jury reasonably could have found the following facts. On March 17, 1988, David Mason, a tow truck operator employed by Towne Auto in New Haven, was working with a coworker, Paul Goulet, towing illegally parked vehicles. The company had ten accounts to tow vehicles that were improperly parked blocking garage doors. Sometime after 11 p.m., Mason drove his tow truck into the rear parking lot at 90-98 Norton Street, one of Towne Auto's accounts. He had been called three times about a black van owned by the defendant that was parked in a no parking area. As Mason pulled into the driveway, he saw a black van parked on the left side of the driveway, blocking three garage doors. There was a no parking sign on each of the garages and a similar sign on the opposite side of the driveway. With the help of Goulet, who was there with his own tow truck, Mason hooked the van onto his tow truck. The van was suspended from the tow truck when the defendant appeared, wearing only boxer shorts. When asked by the defendant what he was doing, Mason replied that he was towing the van because it was blocking three garage doors. The defendant then shouted, "You ain't taking the fucking truck out of here" and went back inside the building.

Because it was difficult to turn the truck in the narrow driveway, Mason had to get out of the cab of his vehicle and walk around the wrecker to check the area. While out of the vehicle, Mason saw the defendant exit the building holding a rifle or shotgun, which he pointed at Mason while shouting profanities. Mason grabbed the weapon and threw it towards Goulet; then Mason and the defendant got into a fistfight, which resulted in both going to the ground. The fight broke up after several minutes, and Mason climbed back into his truck and the defendant went back inside the building. After driving the truck forward a few more feet, Mason again found it necessary to exit the cab to determine if he had clearance. The defendant appeared a third time and said, "You, you driving the truck." As Mason turned, the defendant, who was holding a handgun, fired a shot, hitting Mason on the left side of his chest. The defendant then ran back into the building. Mason fell to the ground and yelled to Goulet for help. Mason could not get up and Goulet put him inside his tow truck. Police officers and an ambulance arrived shortly thereafter. As a result of the gunshot wound, Mason's spinal cord was injured, leaving him paraplegic.

After the shooting, the defendant discarded the pistol, a .38 caliber for which he did not have a permit, into a nearby body of water. The defendant turned himself in to the police five days later.

I

The defendant first claims that the trial court improperly excluded evidence of Mason's violent character, which he offered on the issue of initial aggressor ¹ in connection with his claim of self-defense. ² Specifically, the defendant argues that the trial court should have admitted evidence of Mason's criminal convictions and the nature of those underlying convictions to show Mason's violent disposition. The defendant further argues that he should have been allowed to cross- Mason as to specific acts of violence that did not result in conviction, also to show Mason's propensity for violence. We conclude that the trial court properly excluded this evidence.

Before the introduction of evidence, both the defendant and the state filed motions addressing the issue of the victim's propensity for violence and the issue of initial aggressor in a self-defense case. The defendant filed a motion for supplemental discovery, seeking information about Mason's convictions, arrests and misconduct history involving acts of violence or use of a weapon. The state filed a motion in limine, seeking to exclude any evidence attempting to show Mason's violent character as a means of establishing that he was the initial aggressor. The trial court ruled that while evidence of a victim's propensity for violence is admissible in an assault case when self-defense has been raised, the defendant had not raised such a claim. The court therefore denied the defendant's motion and granted the state's motion in limine.

Following the defendant's presentation of witnesses after the state's case-in-chief, the defendant made an offer of proof as to ten separate incidents to determine whether any of Mason's convictions or acts of misconduct involving violence would be admissible on the issue of initial aggressor. ³ The ten incidents, in chronological order, and the court's ruling on each are as follows:

(1) July, 1978 breach of peace conviction, stemming from Mason's verbal abuse of and threat of physical harm to a neighbor. The court ruled that the incident, having occurred almost ten years earlier, was too remote in time and involved an incident that was not sufficiently similar in nature to the factual allegations in the present case. While the court agreed with the defendant that an incident does not have to present an identical fact pattern to be admissible, the court ruled that this conviction lacked sufficient probative value to be admissible.

(2) December, 1978 conviction for carrying a dangerous weapon, involving an incident in which Mason used a gun during a dispute. The court ruled that evidence of the arrest lacked sufficient probative value, because it arose out of a domestic dispute that occurred more than nine years before the present incident. The court also disallowed the evidence because it would divert the jury from the issues in the case, unduly delay the case, and bring in collateral matters. The court rejected the defendant's claim that introducing this evidence would not violate the concerns set forth in State v. Miranda, 176 Conn. 107, 109-110, 405 A.2d 622 (1978).

(3) May, 1979 conviction for breach of peace, involving a domestic dispute in which Mason drove his vehicle over another person's lawn. The court refused to admit this evidence because the incident was too remote, having occurred almost nine years before the incident at issue, and because the nature of the violence was not sufficiently similar to the violence in this case. There also appeared to be a question as to how the altercation began, specifically, whether the witness or the complainant was the instigator. The court noted that while the defendant was attempting to demonstrate that Mason "is not a very nice man ... that is not the issue."

(4) July, 1979 disorderly conduct conviction, for which the court described the charge as involving Mason's trying to "beat some gas station out of $5 worth of gas and he yelled a few obscenities ... as he tried to drive away." Here, again, the court noted that the incident might demonstrate that Mason was a "real wise guy" but that this was not sufficient to demonstrate Mason's violent character. The court also pointed out that the incident had occurred almost nine years earlier and was not sufficiently similar to have any probative value.

(5) October, 1980 felony conviction for reckless burning, involving Mason's burning of an automobile during a domestic dispute with his wife. While the defendant was permitted to use this felony conviction for impeachment purposes, the court would not permit the defendant to inquire into the underlying facts to demonstrate Mason's propensity for violence. The court ruled that the conviction was too remote and that the nature of the violence was unlike that in the present case, thereby depriving the evidence of sufficient probative value.

(6) and (7) Two January, 1982 convictions for conspiracy to commit arson, involving Mason's hiring someone to burn four vehicles and his torching the house of a person who Mason claimed owed him money. While the defendant had been permitted to use these prior convictions for impeachment purposes, the court again noted that unless there was some similarity between the facts of these convictions and those of the alleged aggression in the case before the jury, they could not be admitted. The court observed that neither incident bore this similarity. With respect to the first conviction, the court expressed concern that the evidence would confuse the jury. The state argued that the nature of the first incident was really fraud, that Mason was attempting to get insurance proceeds by having his wife's car destroyed, that the conviction was remote in time (over six years ago) and that the element of violence was completely different from that in the present incident. The court agreed and disallowed the evidence.

With respect to the second conviction, the defendant pointed out that Mason was involved in setting fire to a porch. The court noted, however, that to be admissible there had to be some assaultive behavior on another person sufficiently similar to that in the present case. The court considered the nature of the crime and its remoteness in time and found that the evidence lacked sufficient probative value to warrant admission. The court further noted...