State v. Whitford, (SC 16616)

• Decision Date: 02 July 2002
• Docket Number: (SC 16616)
• Citation: 799 A.2d 1034,260 Conn. 610
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. ROBERT F. WHITFORD

260 Conn. 610

799 A.2d 1034

STATE OF CONNECTICUT v. ROBERT F. WHITFORD

(SC 16616)

Supreme Court of Connecticut.

Argued January 11, 2002

Officially released July 2, 2002

Sullivan, C. J., and Borden, Norcott, Katz and Vertefeuille, Js. Alice Osedach-Powers, assistant public defender, for the appellant (defendant).

Toni M. Smith-Rosario, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Brian Preleski, assistant state's attorney, for the appellee (state).

Opinion

BORDEN, J.

The defendant appeals¹ from the judgment of conviction, rendered after a jury trial, of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (1).² The defendant claims that the trial court improperly: (1) failed to define the term "initial aggressor" in charging the jury on self-defense; (2) instructed the jury regarding the defendant's duty to retreat; (3) instructed the jury on provocation as an exception to self-defense; (4) instructed the jury regarding the degree of force used by the defendant against the victim; (5) excluded evidence of prior incidents in which the victim had acted violently while intoxicated; and (6) instructed the jury to consider the comparative credibility of the defendant's and victim's varying accounts of the events for which the defendant was later charged. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Anthony Pernal, shared an apartment in Bristol with Bonnie Courchaine and Anna Holcomb. Approximately one week prior to the incident, the defendant, Robert F. Whitford, drove to Connecticut from Georgia and began to stay at the apartment at Courchaine's invitation. His motivation for coming was twofold: first, to rekindle a romantic relationship with Courchaine; and second, to ensure that the victim, who did not get along with his roommates, vacated the apartment. The victim and the defendant had had little contact over the course of the week leading up to their encounter. The victim had begun moving his belongings out of the apartment and planned to vacate the premises permanently on Sunday, March 14, 1999.

On Friday, March 12, 1999, Courchaine left for Georgia, where she previously had resided with the defendant, in order to retrieve some items from storage. That evening, the victim and Holcomb drank late into the night. The victim then spent the majority of the following day frequenting several bars with his cousin. Upon returning to the apartment, the victim began arguing with Holcomb, who also had been drinking. Holcomb called the police to have him arrested. Although the police responded to the call, they failed to take the victim into custody, and instead attempted to defuse the situation by asking Holcomb temporarily to leave the apartment.

After Holcomb had returned and the police had left, Holcomb remarked to the defendant, "See how nothing happens to him? He's moving out. We need to do something to him." The defendant, who also had been drinking, responded by telling the victim, "You're getting out of here now." The victim, choosing to ignore the defendant, turned and walked into his bedroom. The defendant followed and pushed the victim into his dresser. The victim felt something hit his side a few times, accompanied by sharp pains. The defendant then retreated to the living room and the victim was left alone in the bedroom, blood from his side seeping onto the carpet near the dresser. Soon thereafter, the victim walked into the living room, where the defendant told him, "I just got you good and I got you twice." The victim then dropped to his knees from the intensity of his pain.

Holcomb had been unconscious during the altercation but awoke just in time to see the victim fall. She grabbed a towel and held it against his side in an effort to stop the bleeding. She then suggested that he lie down and get some sleep, to which the victim responded, "I think this guy really stabbed me." Holcomb insisted that she had "seen everything," and told the victim, "You just got nicked when you got pushed against the dresser."

Although the victim attempted to call for help, Holcomb ripped the telephone away from him and refused to let him use it. The victim rested briefly on the living room couch and then returned to his bedroom. Once there, he lifted his shirt to find that he had been stabbed twice, once on the arm and once in the side. He then decided to flee the apartment in an effort to seek help. He grabbed his jacket, headed out the front door and into the street, trying to locate one of the patrol cars that typically frequented the area. After seeing none, he walked down the street, trying the door of a Subway restaurant, which was locked. He continued for another block until he happened upon the Downtown Café. Once inside, he explained to the bartender that he had been stabbed and that he needed to use the telephone to call an ambulance.

The victim eventually was taken to Bristol Hospital. Upon admission, he was inebriated, abusive and belligerent. The victim remained hospitalized for one week, having suffered a superficial stab wound on his left arm and a more serious wound just below his rib cage that had penetrated through the bottom part of his lung and diaphragm, nicked his intercostal artery, and punctured his spleen. The victim's injuries could have been fatal had they not been timely identified and treated.

Although admitting that he had stabbed the victim,³ the defendant claimed at trial that he had done so in self-defense. He submitted the following version of events to the jury in support of his claim. After the police had left the apartment on Saturday evening, he and the victim were alone in the living room drinking and watching television; Holcomb was in her bedroom. The defendant began to discuss the problems that the roommates had been having and asked the victim why he continued to live at the apartment when he knew that Holcomb and Courchaine wanted him to move out. Suddenly, the victim jumped on top of the defendant, who was seated on the couch, and began choking him, screaming, "Nobody tells me what to do in my fucking apartment!" The defendant attempted to pull the victim's hands away from his neck, but the victim maintained his grip. In a further effort to free himself, the defendant grabbed a pocketknife off a nearby cabinet and stabbed the victim. The victim then retreated momentarily to his bedroom. He returned to the living room, whereupon Holcomb awoke and entered the room in time to see the victim fall to the carpet. The victim moved to the couch and lifted up his shirt; Holcomb saw that he was bleeding and got him a towel to hold against his wound. Shortly thereafter, the victim grabbed his jacket from his bedroom and left the apartment. Neither the defendant nor Holcomb recalled preventing the victim from using the telephone.

The trial court, having determined that the defendant offered sufficient evidence to establish a colorable claim of self-defense under General Statutes § 53a-19,⁴ instructed the jury accordingly. The jury returned a guilty verdict and the court rendered judgment thereon. This appeal followed.

I

In large part, the defendant's claims on appeal relate to the propriety of the trial court's jury instructions regarding self-defense.⁵ Our analysis of these claims is informed by the principle that "a fundamental element of due process of law" is the right of a defendant charged with a crime to establish a defense. State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). We previously have held that "`[t]his fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.'" State v. Ash, 231 Conn. 484, 492-93, 651 A.2d 247 (1994).

Where, as here, the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Anderson, 227 Conn. 518, 526-27, 631 A.2d 1149 (1993). In evaluating the particular charges at issue, we must "`adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view [them] as improper.'" State v. Aponte, 259 Conn. 512, 517, 790 A.2d 457 (2002).

A

The defendant first claims that the trial court improperly failed to define the term "initial aggressor" after instructing the jury that it "must . . . reject the . . . self-defense claim if the state proves beyond a reasonable doubt [that] the defendant was the initial aggressor." According to the defendant, the court's failure in this regard could have misled the jury into believing that the defendant was the initial aggressor simply because he instigated a verbal exchange with the victim that ultimately lead to their violent encounter. The state, however, argues that there is no reasonable possibility that the jury was misled because: (1) neither the state nor the defendant ever had suggested that mere words were sufficient to confer upon either party the status of "initial aggressor"; and (2) the court's instruction, taken as a whole, expressly linked the term "initial aggressor" with the use of force, thereby precluding any inference that the defendant was the initial aggressor because he started a contentious conversation with the victim. We agree with the state.

As a...