State v. Zayas, 2685

• Citation: 489 A.2d 380,3 Conn.App. 289
• Decision Date: 19 February 1985
• Docket Number: No. 2685,2685
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Jessie Munos ZAYAS.

Page 380

489 A.2d 380

3 Conn.App. 289

STATE of Connecticut v. Jessie Munos ZAYAS.

No. 2685.

Appellate Court of Connecticut.

Argued Dec. 6, 1984.

Decided Feb. 19, 1985.

Joseph G. Bruckman, Asst. Public Defender, New Haven, with whom, on the brief, were Joette Katz, Public Defender, and Margaret Hayman, Asst. Public Defender, for appellant (defendant).

Lawrence J. Tytla, Deputy Asst. State's Atty., with whom, on the brief, were Walter D. Flanagan, State's Atty., Martin Rader, and John M. Massameno, Asst. State's Attys., for appellee (state).

Before DUPONT, C.P.J. and HULL and SPALLONE, JJ.

HULL, Judge.

The defendant, Jessie Munos Zayas, appeals ¹ from the judgment of the trial court upon his conviction, after a jury trial, on charges of threatening in violation of General Statutes § 53a-62, reckless endangerment in the first degree in violation of General Statutes § 53a-63(a) and carrying a pistol without a permit in violation of General Statutes § 29-35. Zayas raises four major claims of error: ² (1) the failure of the court to instruct the jury on self-defense as a justification for the offenses of threatening and reckless endangerment in the first degree; ³ (2) the denial of the defendant's motion to suppress; (3) the denial of his motion for a mistrial or, in the alternative, to strike testimony; and (4) the denial of his motion for judgment of acquittal on the charge of carrying a pistol without a permit. We conclude that the court did not err.

Late on the evening of October 31, 1978, the defendant and his companion, Angela Novicky, were returning home from a halloween party. As they walked down Post Office Street in Danbury they came upon three men, in costume, walking down the street on the opposite sidewalk. One of the men was singing, and the defendant shouted to him to "shut up." From that point, there are several widely different versions of what occurred. If the jury accepted the defendant's trial testimony as credible, they could have found the following- : The defendant and Novicky crossed the street and, while Novicky continued on her way, the defendant turned to confront the three men who had begun to shout at him. One of the men, later identified as Bassam Sabbagh, pulled out a gun and the defendant grabbed Sabbagh's wrist so as to direct the gun at the ground. One of Sabbagh's companions, Gary Goetz, then struck Zayas and the three men then beat him unconscious before leaving in a car.

Novicky had, in the interim, gone to a nearby shop where she called the police who arrived a short time later. When they arrived, the police found the defendant, unconscious, on the ground with a .25 caliber Colt automatic pistol between his legs. The gun was jammed when the police found it so that it would not fire.

The defendant was taken to Danbury Hospital and was subsequently charged with the offenses which are the subject of this appeal. The police also picked up Sabbagh, Goetz and Mark Neville, the third man, later that night.

On November 1, 1978, officers Vincent Pannozza and Robert Lollie questioned Zayas at the hospital. They asked him if he was willing to speak to them and, after he agreed to do so, Pannozza read him his rights as required by Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). Zayas then stated that he understood his rights and he signed the card from which they had been read. Pannozza then asked the defendant what had happened the night before and Zayas narrated the entire incident. Zayas' statement at that time, if Pannozza's testimony is believed, directly contradicts Zayas' trial testimony. ⁴

After Zayas was released from the hospital, he was taken to the Danbury police station where, while awaiting arraignment, he again spoke to police. This second statement was made on November 2, 1978, to detective John Merullo. Zayas had asked Merullo what charges he faced. Merullo read the report on the incident and answered the defendant. He then asked Zayas about his injuries and the events of the night in question. Zayas responded with a narrative very similar to the one he had given Pannozza the day before.

Prior to his trial, the defendant filed a motion to suppress statements made by him to police officers after his arrest. That motion was denied and the case proceeded to trial.

After the direct testimony of Pannozza regarding his interview with Zayas, the defendant moved to compel production of Pannozza's rough notes, made at the time of the interview, pursuant to Practice Book § 752. ⁵ Those notes, which Pannozza claimed had been incorporated into his official report, had since been destroyed. Consequently, the defendant moved for a mistrial or, in the alternative, to strike Pannozza's testimony pursuant to Practice Book § 755. ⁶ That motion was denied.

At the close of the trial, the court also denied the defendant's motion for judgment or acquittal on the charge of carrying a pistol without a permit. That motion was premised on the defendant's argument that such a charge requires that the pistol be operable and that the pistol in this case could not be fired.

The defendant requested that the court instruct the jury on self-defense as a justification for all of the crimes with which he was charged. ⁷ The court denied that request and the jury returned verdicts of guilty on all charges. The defendant was sentenced to concurrent terms of 360 days imprisonment on the charges of threatening and reckless endangerment and to two to five years imprisonment on the charge of carrying a pistol without a permit. He has since served his sentence.

I

"Self-defense is not an affirmative defense under our statutes. It may, however, be asserted as a defense by way of justification pursuant to § 53a-16 of the General Statutes. The burden of proof applicable to the claimed defense is recited in § 53a-12(a) of the General Statutes, which provides: '(a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.' (Emphasis added.)" (Footnote omitted.) State v. Cassino, 188 Conn. 237, 241, 449 A.2d 154 (1982). " 'A defendant must, however, assert a recognized legal defense before such a charge will become obligatory.' State v. Rosado, [178 Conn. 704, 707, 425 A.2d 108 (1979) ]. Requests to charge have been denied where such admissions have been lacking. See State v. Hawkins, 173 Conn. 431, 436, 378 A.2d 534 (1977) (entrapment); State v. Avery, 152 Conn. 582, 584, 211 A.2d 165 (1965) (entrapment). We have held, with respect to affirmative defenses, 'that only when evidence indicating the availability of one of the ... legally recognized defenses is placed before a jury is a defendant entitled as a matter of law to a theory of defense instruction.' (Emphasis in original.) State v. Rosado, supra, [178 Conn.] 708 ; State v. Hawkins, supra [173 Conn.] 435-37 . Although this case involves a nonaffirmative defense issue, similar reasoning nonetheless applies." State v. Cassino, supra, 188 Conn. 243, 449 A.2d 154; State v. Hardwick, 1 Conn.App. 609, 619, 475 A.2d 315, cert. denied, 193 Conn. 804, 476 A.2d 145 (1984).

In the present case, the defendant never raised the self-defense issue at trial. The issue was not expressly raised until the request to charge the jury on self-defense was made. Nor was the issue raised by the defendant's testimony. In fact, such a charge would directly contradict the defendant's trial testimony which was to the effect that he never possessed the gun and that, although he might have touched it, he "was holding [Sabbagh] where he would not be able to point the gun at me. He was pointing the gun at the ground." (Emphasis added.)

The only evidence supportive of the defendant's self-defense claim was the prosecution's own evidence, contradicting the defendant's version of the incident, to the effect that Zayas pulled the gun and threatened Sabbagh and his companions with it. The defendant expressly denied having the gun. When the jury instruction has the effect of contradicting the defendant's own evidence, he is not entitled to it. United States v. Crowder, 543 F.2d 312, 317 (D.C.Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977); State v. Cassino, supra, 188 Conn. 244, 449 A.2d 154. While the defendant is entitled to have the state disprove that he acted in self-defense once that issue is raised, the defendant is not entitled to ambush the state with such a claim after the state no longer has the ability to provide evidence rebutting that claim.

II

The defendant next claims that the court erred in refusing to declare a mistrial or to strike the testimony of Pannozza pursuant to Practice Book § 755 ⁸ as a sanction for his failure to produce his rough notes as required by Practice Book § 752. ⁹ We conclude that the court did not err in denying that motion.

" 'Whether or not sanctions for nondisclosure should be imposed depends in large measure upon the extent of the Government's culpability for failure to make disclosable material available to the defense, on the one hand, weighed against the amount of prejudice to the defense which resulted, on the other.' United States v. Miranda, 526 F.2d 1319, 1324 (2d Cir.1975), cert. denied, 429 U.S. 821, 97 S.Ct. 69, 50 L.Ed.2d 82 (1976). Applying a balancing test, the United States Court of Appeals for the Second Circuit held that the trial court's ruling denying the defendant's motion to suppress the testimony of a witness because a tape recording of a conversation between her and the defendant had been lost was not reversible error, for that would be a heavy sanction to the government for loss of a piece of evidence on which there was other primary evidence. Id. In United States v. Perry, 471 F.2d 1057 (D.C.Cir.1972), the court recognized that this balancing approach gives broad discretion to the trial court." (Emphasis added.) State v. Shaw, 185 Conn. 372,...