State v. Gomes ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. WAGNER GOMES
(AC 41364)
Alvord, Moll and Bear, Js.
Syllabus
Convicted of the crime of assault in the second degree in connection with
his conduct in hitting the victim in the head with a bottle, the defendant
appealed to this court. The defendant and another individual, M, had
been fighting in a bar as a result of offensive remarks that M made to
the defendant’s girlfriend. After security guards separated the defendant
and M, the victim asked M why he was fighting, and the defendant
struck the victim with the bottle. On appeal, the defendant claimed
that the trial court deprived him of his right to present a defense of
investigative inadequacy when it omitted from its instructions to the
jury certain language in his written request to charge that pertained to
the police investigation into the incident as it might relate to weaknesses
in the state’s case. The defendant claimed that without the inclusion of
the language he requested, the jury would not have understood how to
use the evidence he elicited at trial about the inadequacies of the police
investigation. Held that the trial court did not mislead the jury or violate
the defendant’s right to present a defense by omitting the requested
language from its instructions: that court’s jury charge was identical to
the model jury instruction provided on the Judicial Branch website and
was in keeping with long-standing Connecticut law, nearly identical
instructions have been upheld by our Supreme Court, the defendant
presented his evidence to the jury and cross-examined the state’s wit-
nesses regarding the alleged inadequacy of the police investigation, and
the court did not direct the jury to disregard that evidence or argument,
and specifically instructed the jury to consider all of the evidence before
it; moreover, the court, in its charge on investigative inadequacy,
repeated to the jury its responsibility to determine whether the state,
in light of all the evidence, had proved beyond a reasonable doubt that
the defendant was guilty of the count with which he was charged.
Argued March 5—officially released September 24, 2019
Procedural History
Substitute information charging the defendant with
the crime of assault in the second degree, brought to
the Superior Court in the judicial district of Fairfield,
geographical area number two, and tried to the jury
before Doyle, J.; verdict and judgment of guilty, from
which the defendant appealed to this court. Affirmed.
Lisa J. Steele, assigned counsel, for the appellant
(defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were John C. Smriga and Margaret
E. Kelley, state’s attorneys, for the appellee (state).
Opinion
ALVORD, J. The defendant, Wagner Gomes, 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) (2).1 On appeal, the defen-
dant claims that the trial court erred in omitting from
its jury instruction his proposed sentence, ‘‘[h]owever,
you may consider evidence of the police investigation
as it might relate to any weaknesses in the state’s case,’’2
and, in doing so, deprived him of his right to present
a defense of investigative inadequacy.3 We affirm the
judgment of the trial court.
The jury reasonably could have found the following
facts. In the early morning hours of September 12, 2015,
the victim, Edilene Brandao, along with several other
persons, including Raphael Morais,4 attended a birthday
party at the Brazilian Sports Club (club), located at 29
Federal Street, in Bridgeport. Shortly after arriving, the
victim had one drink, and Morais went to the bar to get
a drink for himself. Morais confronted the defendant’s
girlfriend, who was at the bar, pushed her, and made
offensive remarks to her. A fight then broke out inside
the club between the defendant and Morais. Security
guards intervened and separated them. The defendant
was taken outside, and Morais was taken to the patio.
The victim went to the patio with Morais. There was
a fence at the back of the patio, and the victim had her
back to that fence. The victim proceeded to ask Morais
why he was fighting, and Morais responded, ‘‘it’s him.’’
The victim then turned to face the fence and saw the
defendant standing approximately two feet away from
her, on the outside of the fence, with a bottle in his
hand. The defendant then struck the victim on the fore-
head with the bottle.
The club’s owner, Demetrio Ayala, Jr., knew the
defendant because he visited the club several times per
month. Ayala observed the fight between the defendant
and another person known to him as ‘‘Rafael.’’5 Ayala,
after hearing shouting on the patio, went to investigate
and discovered that the victim was bleeding. Ayala then
went out the front door of the club in order to try to
find the defendant, whom he saw in the parking lot
running away from the club. Ayala subsequently called
the police.
Before the police arrived, the victim was transported
to St. Vincent’s Medical Center in Bridgeport by private
car in the company of several persons who were in the
club that night. She arrived at the hospital at about
12:30 a.m., where she was seen by a triage nurse and
received treatment for the bleeding and pain. Several
hours later, the victim was also treated by a plastic
surgeon and then released.6
John Topolski and Matthew Goncalves, officers with
the Bridgeport Police Department, were among the first
police officers to arrive at the club shortly after 1:30
a.m. Upon their arrival, they observed that ‘‘[the scene]
was a mess’’ and that ‘‘there [were] maybe a hundred
people scattered amongst the streets.’’ Officer Topolski
briefly spoke with Morais, who had, he observed, a
swollen face, one eye that was swollen shut, profuse
facial bleeding, clothes covered in blood, and an appar-
ently dislocated shoulder.7 Once the scene was secure,
the officers departed for the hospital, intending to ques-
tion Morais, who also had been taken to the hospital
before the police completed their initial on-site investi-
gation. While the officers were en route to the hospital,
they received a radio dispatch informing them that a
woman, who also had been injured at the club, was
already at the hospital.
When the officers arrived at the hospital, Officer
Topolski went in search of the injured woman, and
Officer Goncalves went in search of Morais. Although
Officer Goncalves located Morais, he was unable to
speak with Morais because his wounds were being
treated, and he was being prepared for surgery. Officer
Topolski located the victim in the waiting area of the
hospital’s emergency department and identified her as
the woman who had been injured at the club. The victim
was in the company of approximately five other individ-
uals. Officer Topolski observed that the victim was cry-
ing and visibly shaken. She had blood covering her face
and was holding gauze to her head. Despite her physical
and emotional condition, the victim was coherent
enough to provide information to Officer Topolski. In
her verbal statement to Officer Topolski, the victim
denied that Morais may have been the aggressor in
some type of altercation with her. Officer Topolski,
while he was at the hospital, also obtained the name
of the defendant, but it was not clear from whom he
received that information.8
On October 2, 2015, the victim went to the Bridgeport
police station with her attorney, where she was inter-
viewed by Detective Paul Ortiz in the presence of Ser-
geant Gilbert Valentine about the events that occurred
on September 12, 2015. Detective Ortiz reviewed Officer
Topolski’s report of the events. Through this report,
Detective Ortiz learned that the defendant might be a
suspect. Detective Ortiz prepared a photographic array
that included a photograph of the defendant, which
he showed to the victim. When the victim viewed the
photograph of the defendant, she became emotional
and started to cry. She examined the entire array and
then selected the defendant’s photograph, on which she
wrote that she was ‘‘100 percent’’ confident that he was
the person who had attacked her. The defendant was
subsequently arrested.
At trial, the defendant sought to persuade the jury
that reasonable doubt existed regarding the victim’s
identification of the defendant as the person who
assaulted her. The main defense advanced by the defen-
dant was that the police had conducted an inadequate
investigation of the incident.
During closing arguments, defense counsel argued
that ‘‘this case screams reasonable doubt. . . . [T]he
police completely failed in this case, and they com-
pletely failed [the victim]. They didn’t go back to that
scene that night. They didn’t identify the crime scene.
They didn’t take any photos so that you, ladies and
gentlemen, could see how the scene looked that night.
How the lighting looked. They never tried to get any
surveillance video. . . . They didn’t confirm what hap-
pened.’’ Defense counsel also argued that the police
‘‘spent ninety minutes on this investigation,’’ and that
the case ‘‘boil[ed] down to one witness and what she
saw in a split second, and she may very well believe
that [the defendant] did this to her. But the police did
nothing to confirm as to what Officer Goncalves said
they needed to do.’’
In connection with his defense of inadequate police
investigation, the defendant had filed a written request
to charge the jury, which provided in relevant part:
‘‘[1] You have heard some arguments that the police
investigation was inadequate and biased. [2] The issue
for you to decide is not the thoroughness of the investi-
gation or the competence of the police. [3] However,
you may consider evidence of the police investigation
as it might relate to any weaknesses in the state’s case.
[4] Again, the only issue you have to determine is
whether the state, in light of all the evidence before
you, has proved beyond a reasonable doubt that the
defendant is guilty of the counts with which he is
charged.’’9
On October 27, 2018, the court held a charge confer-
ence. In discussing the final charge, the court told
defense counsel that it would be charging on the ade-
quacy of the police investigation, in a form that was
somewhat similar to the defendant’s requested instruc-
tion, but that ‘‘[i]t may be a little bit different.’’
The court instructed the jury in relevant part: ‘‘You
have heard some arguments that the police investiga-
tion was inadequate and that the police involved in the
case were incompetent or biased. The issue for you to
decide is not the thoroughness of the investigation or
the competence of the police. The only issue you have
to determine is whether the state, in light of all the
evidence before you has proved beyond a reasonable
doubt that the defendant is guilty of the counts with
which he was charged.’’ Defense counsel objected to
the court’s omission of point three of his requested
instruction.
The jury subsequently found the defendant guilty of
assault in the second degree in violation of § 53a-60 (a)
(2). The court rendered judgment in accordance with
the jury’s verdict and imposed a total effective sentence
of five years of imprisonment, execution suspended
after two years, followed by three years of probation.
This appeal followed. Additional facts will be set forth
as necessary.
On appeal, the defendant claims that the jury instruc-
tions, as given, deprived him of his right to present a
defense of investigative inadequacy. Specifically, the
defendant argues that the court erred in failing to
include point three of his requested jury charge, which
reads: ‘‘However, you may consider evidence of the
police investigation as it might relate to any weaknesses
in the state’s case.’’ The defendant argues that without
the inclusion of this requested sentence, the jury would
not ‘‘have understood how to use the evidence [the
defendant] was able to elicit about the inadequacies of
[the police investigation].’’ We conclude that the court
did not err in omitting point three from the jury charge.
We begin by setting forth the standard of review and
legal principles that guide our analysis. ‘‘[A] fundamen-
tal element of due process of law is the right of a
defendant charged with a crime to establish a defense.
. . . 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. . . .
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.’’ (Internal quotation
marks omitted.) State v. Collins, 299 Conn. 567, 598–99,
10 A.3d 1005, cert. denied, 565 U.S. 908, 132 S. Ct. 314,
181 L. Ed. 2d 193 (2011).
‘‘While a request to charge that is relevant to the
issues in a case and that accurately states the applicable
law must be honored, a court need not tailor its charge
to the precise letter of such a request. . . . If a
requested charge is in substance given, the court’s fail-
ure to give a charge in exact conformance with the
words of the request will not constitute a ground for
reversal. . . . As long as [the instructions] are correct
in law, adapted to the issues and sufficient for the guid-
ance of the jury . . . we will not view the instructions
as improper.’’ (Citations omitted; internal quotation
marks omitted.) State v. Aviles, 277 Conn. 281, 309–10,
891 A.2d 935, cert. denied, 549 U.S. 840, 127 S. Ct. 108,
166 L. Ed. 2d 69 (2006); see State v. Kendrick, 314 Conn.
212, 225–26, 100 A.3d 821 (2014) (clarifying decision in
Aviles). ‘‘A challenge to the validity of jury instructions
presents a question of law over which [we exercise]
plenary review.’’ (Internal quotation marks omitted.)
State v. Collins, supra, 299 Conn. 599.
We conclude that the instruction did not mislead the
jury or violate the defendant’s right to present a defense.
First, the court’s charge as given was identical to the
model jury instruction provided on the Judicial Branch
website.10 See Connecticut Judicial Branch Criminal
Jury Instructions 2.6-14 (November 6, 2014), available
at https://jud.ct.gov/JI/Criminal/Criminal.pdf (last vis-
ited September 18, 2019). As our Supreme Court has
noted, ‘‘[w]hile not dispositive of the adequacy of the
[jury] instruction, an instruction’s uniformity with the
model instructions is a relevant and persuasive factor
in our analysis . . . .’’ (Internal quotation marks omit-
ted.) State v. Ebron, 292 Conn. 656, 688 n.27, 975 A.2d
17 (2009), overruled in part on other grounds by State
v. Kitchens, 299 Conn. 447, 472–73, 10 A.3d 942 (2011);
see also State v. Shenkman, 154 Conn. App. 45, 75, 104
A.3d 780 (2014), cert. denied, 315 Conn. 921, 107 A.3d
959 (2015).
Moreover, the court’s instruction was in keeping with
long-standing Connecticut law. Nearly identical instruc-
tions were upheld by our Supreme Court in State v.
Collins, supra, 299 Conn. 598,11 and State v. Williams,
169 Conn. 322, 335 n.3, 363 A.2d 72 (1975),12 as well as
by this court in State v. Nieves, 106 Conn. App. 40,
57–58, 941 A.2d 358, cert. denied, 286 Conn. 922, 949
A.2d 482 (2008),13 and State v. Tate, 59 Conn. App. 282,
284–85, 755 A.2d 984, cert. denied, 254 Conn. 935, 761
A.2d 757 (2000).14
In State v. Collins, supra, 299 Conn. 567, our Supreme
Court considered and rejected the same arguments
being made by the defendant in this case. The defendant
in Collins claimed that the trial court’s instruction with
respect to the adequacy of the police investigation,
which was nearly identical to the instruction in the
present case; see footnote 11 of this opinion; misled
the jury and deprived him of his right to present a
defense. State v. Collins, supra, 598. Specifically, he
argued that the instruction ‘‘destroyed [his] defense by
precluding consideration of it and also by conveying
the judge’s impression that his defense was not worthy
of consideration.’’ (Internal quotation marks omitted.)
Id. Our Supreme Court disagreed. It held that the
instruction ‘‘did not mislead the jury or violate the
defendant’s right to present a defense because it did
not direct the jury not to consider the adequacy of the
investigation as it related to the strength of the state’s
case, or not to consider specific aspects of the defen-
dant’s theory of the case.’’ Id., 600–601.
In reaching its conclusion, our Supreme Court
explained: ‘‘In the abstract, whether the government
conducted a thorough, professional investigation is not
relevant to what the jury must decide: Did the defendant
commit the alleged offense? Juries are not instructed
to acquit the defendant if the government’s investigation
was superficial. Conducting a thorough, professional
investigation is not an element of the government’s
case. . . . A defendant may, however, rely upon rele-
vant deficiencies or lapses in the police investigation
to raise the specter of reasonable doubt, and the trial
court violates his right to a fair trial by precluding the
jury from considering evidence to that effect.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
599–600.
Our Supreme Court nevertheless concluded that the
instruction was not misleading because it ‘‘was phrased
in neutral language and did not improperly disparage
the defendant’s claims, or improperly highlight or
endorse the state’s arguments and evidence’’; id., 602;
and ‘‘properly reminded the jury that its core task was
to determine whether the defendant was guilty of the
charged offenses in light of all the evidence admitted
at trial, rather than to evaluate the adequacy of the
police investigation in the abstract.’’ Id., 601.
In the present case, the defendant relies on State v.
Wright, 322 Conn. 270, 140 A.3d 939 (2016), in support
of his claim.15 Specifically, he argues that the present
case is distinguishable from Collins, Williams, Nieves
and Tate ‘‘because of [Wright’s] clear recognition of
investigative omission/adequacy defenses . . . .’’ In
addition, he argues that ‘‘the instruction as given here
is in conflict with the Supreme Court’s decision in
[Wright]’’ and that ‘‘the model jury instruction did not
adequately tell the jury how it could use the investiga-
tive omission or inadequacy evidence in light of
[Wright].’’ We disagree.
First, the defendant’s reliance on State v. Wright,
supra, 322 Conn. 270, is misplaced. In Wright, our
Supreme Court did not consider the adequacy of a jury
instruction on an investigative inadequacy defense.
Rather, it addressed a defendant’s rights and obligations
when he seeks to advance a theory of defense that the
police investigation into the crime with which he was
charged was inadequate. It concluded that ‘‘defendants
may use evidence regarding the inadequacy of the inves-
tigation into the crime with which they are charged as
a legitimate defense strategy’’; id., 282; but nevertheless,
in that case, neither the ‘‘defendant’s proposed ques-
tions nor his offer of proof established the basis for a
claim that the police, in not pursuing certain avenues
of investigation, had failed to act in accordance with
past established practices or standard police investiga-
tive procedures, [and therefore] he cannot establish
that the trial court improperly precluded him from
advancing an inadequate investigation defense on [that]
basis.’’ Id., 281–82. In Wright, our Supreme Court did
not address, as it did in Collins, whether the absence
of language instructing the jury on how it could use the
evidence rendered the instructions constitutionally
deficient.
The present case is distinguishable from Wright in
that the defendant presented his evidence and cross-
examined the state’s witnesses regarding the alleged
inadequacy of the police investigation. He utilized this
evidence as the primary focus of his closing argument.
The court did not preclude the defendant from present-
ing this evidence to the jury, nor did it preclude the
jury from considering this evidence. Instead, the court
specifically instructed the jury to consider all of the
evidence before it.
Moreover, our Supreme Court’s decision in Wright
is consistent with its decision in Collins.16 Although the
defendant argues that the significance of Wright is its
‘‘clear recognition of investigative omission/adequacy
defenses,’’ our Supreme Court had previously validated
this defense in Collins. See State v. Collins, supra, 299
Conn. 599–600 (‘‘[a] defendant may . . . rely upon rele-
vant deficiencies or lapses in the police investigation
to raise the specter of reasonable doubt, and the trial
court violates his right to a fair trial by precluding the
jury from considering evidence to that effect’’). In
Wright, the court, citing Collins, stated: ‘‘[T]his court
has recognized that defendants may use evidence
regarding the inadequacy of the investigation into the
crime with which they are charged as a legitimate
defense strategy.’’ (Emphasis added.) State v. Wright,
supra, 322 Conn. 282. Accordingly, we are not per-
suaded by the defendant’s argument that Wright distin-
guishes the present case from Collins, Williams, Nieves
and Tate.17
Taking into consideration the charge as a whole, we
conclude that the jury was not misled by the court’s
instructions. The defendant presented his evidence to
the jury and cross-examined the state’s witnesses
regarding the alleged inadequacy of the police investiga-
tion. The primary focus of the defendant’s closing argu-
ment was that the police investigation was inadequate
and that the jury should, in light of that, find that the
state had failed to prove that the defendant was guilty
beyond a reasonable doubt.18 The court did not direct
the jury to disregard this evidence or argument. See
State v. Collins, supra, 299 Conn. 600–601 (concluding
that instruction did not mislead jury because ‘‘it did not
direct the jury not to consider the adequacy of the
investigation as it related to the strength of the state’s
case, or not to consider specific aspects of the defen-
dant’s theory of the case’’); see also State v. Wright,
149 Conn. App. 758, 773–74, 89 A.3d 458 (holding that
defendant’s right to fair trial was not impinged, and jury
was not misled by court’s instruction, where defendant
was given opportunity to present evidence and argued
to jury regarding deficiencies in police investigation),
cert. denied, 312 Conn. 917, 94 A.3d 641 (2014).
Moreover, in Collins, our Supreme Court explained
that a defendant ‘‘may . . . rely upon relevant deficien-
cies or lapses in the police investigation to raise the
specter of reasonable doubt . . . .’’ State v. Collins,
supra, 299 Conn. 599–600. In its charge to the jury on
reasonable doubt, the court in the present case
instructed the jury that ‘‘[a] reasonable doubt may arise
from the evidence itself or from a lack of evidence.
. . . If, based on your consideration of the evidence,
you are firmly convinced that the defendant is guilty
of the crime charged, you must find him guilty. If, on
the other hand, based on the evidence or lack of evi-
dence, you have a reasonable doubt as to the defen-
dant’s guilt, you must give him the benefit of that doubt
and find him not guilty.’’ (Emphasis added.) The court,
moreover, in its charge on investigative inadequacy,
repeated to the jury its responsibility to determine
whether the state, in light of all of the evidence, had
proved beyond a reasonable doubt that the defendant
was guilty of the count with which he was charged.
Accordingly, we conclude that the jury was not misled
by the instructions given, and, therefore, there was
no error.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-60 (a) provides in relevant part: ‘‘A person is
guilty of assault in the second degree when . . . (2) with intent to cause
physical injury to another person, the actor causes such injury to such
person . . . by means of a deadly weapon or a dangerous instrument other
than by means of the discharge of a firearm . . . .’’
2
Although the defendant framed his claim on appeal as one of plain error,
the state does not argue that the defendant’s claim was unpreserved. Thus, in
this opinion, we address whether the court erred in omitting the defendant’s
proposed sentence from its charge to the jury.
3
The defendant also requests that this court exercise its supervisory
powers over the administration of justice to ‘‘craft a proper investigative
evidence instruction.’’ We decline the defendant’s request. ‘‘Although [a]ppel-
late courts possess an inherent supervisory authority over the administration
of justice . . . [that] authority . . . is not a form of free-floating justice,
untethered to legal principle. . . . Our supervisory powers are not a last
bastion of hope for every untenable appeal. They are an extraordinary
remedy to be invoked only when circumstances are such that the issue at
hand, while not rising to the level of a constitutional violation, is nonetheless
of utmost seriousness, not only for the integrity of a particular trial but also
for the perceived fairness of the judicial system as a whole. . . . Constitu-
tional, statutory and procedural limitations are generally adequate to protect
the rights of the defendant and the integrity of the judicial system. Our
supervisory powers are invoked only in the rare circumstances where these
traditional protections are inadequate to ensure the fair and just administra-
tion of the courts.’’ (Citation omitted; emphasis in original; internal quotation
marks omitted.) State v. Coward, 292 Conn. 296, 315, 972 A.2d 691 (2009).
For the reasons set forth in this opinion, the defendant’s request does not
warrant the exercise of our supervisory powers.
4
The trial transcripts in this case inconsistently refer to this individual
as ‘‘Raphael’’ and ‘‘Rafael.’’ The parties, in their appellate briefs, inconsis-
tently refer to him as ‘‘Morais’’ and ‘‘Moais.’’ For consistency and clarity,
we refer to him in this opinion as Morais.
5
It is not clear from the record whether the individual that Ayala knew
as ‘‘Rafael’’ was Raphael Morais. Ayala did not know the last name of the
individual whom he referred to as Rafael, and the spelling of the name,
Raphael or Rafael, is inconsistent throughout the trial transcripts. Neverthe-
less, both parties concede in their briefs that the defendant and Morais were
engaged in some form of altercation.
6
The plastic surgeon who treated the victim testified regarding her injur-
ies. Reading from an emergency department attending physician’s note that
was in evidence, the plastic surgeon stated: ‘‘The patient sustained a deep
laceration in the left eyebrow, and she was struck with a bottle on the face
during the fight in the bar. . . . There is a five centimeter in length laceration
that’s deep with irregular borders and a small stellar portion [over] the left
brow . . . .’’ The plastic surgeon also testified that the ‘‘stellar portion’’
referred to ‘‘where the skin . . . bursts open from contact where it stellates,
so it just looks like a star. . . . It’s not a clean laceration, like you get from
a kitchen knife.’’
7
There was evidence that, after the defendant struck the victim with the
bottle, several other patrons of the club attacked Morais.
8
The victim testified that she did not give the defendant’s name to the
police because she did not know the defendant prior to the night she
was attacked.
9
In its brief, the state referenced the individual components of the defen-
dant’s requested jury instruction as points one, two, three, and four. For
clarity, we adopt the same structure.
10
Instruction 2.6-14, entitled ‘‘Adequacy of Police Investigation,’’ was
approved by the Judicial Branch’s criminal jury instruction committee on
November 6, 2014. It provides: ‘‘You have heard some arguments that the
police investigation was inadequate and that the police involved in this case
were incompetent. The issue for you to decide is not the thoroughness of
the investigation or the competence of the police. The only issue you have
to determine is whether the state, in light of all the evidence before you,
has proved beyond a reasonable doubt that the defendant is guilty of the
count[s] with which (he/she) is charged.’’
The commentary to instruction 2.6-14 states that ‘‘ ‘[a] defendant may
. . . rely upon relevant deficiencies or lapses in the police investigation to
raise the specter of reasonable doubt, and the trial court violates his right
to a fair trial by precluding the jury from considering evidence to that effect.’
State v. Collins, [supra, 299 Conn. 599–600] (finding that such an instruction
as this does not preclude the jury from considering the evidence of the
police investigation as it might relate to any weaknesses in the state’s case).
‘Collins does not require a court to instruct the jury on the quality of police
investigation, but merely holds that a court may not preclude such evidence
and argument from being presented to the jury for its consideration.’ State
v. Wright, 149 Conn. App. 758, 773–74, [89 A.3d 458] cert. denied, 312 Conn.
917 [94 A.3d 641] (2014).’’ Connecticut Judicial Branch Criminal Jury Instruc-
tions, supra, 2.6-14, commentary.
11
In Collins, the court instructed the jury in relevant part: ‘‘[T]he ultimate
issue before you is not the thoroughness of the investigation or the compe-
tence of the police. The ultimate issue you have to . . . determine is whether
the state in the light of all the evidence before you has proved beyond a
reasonable doubt that the defendant is guilty on one or more of the counts
for which he is charged.’’ (Internal quotation marks omitted.) State v. Collins,
supra, 299 Conn. 600.
12
In Williams, the court instructed the jury in relevant part: ‘‘Now, you
have heard in the course of arguments discussion as to whether the police
conducted a thorough search. You have also heard some discussion about
the competency of the police in this arrest. Now, ladies and gentlemen, this
question might be a matter of opinion, but the [s]tate has put its evidence
before you, and the defense was entitled to make an investigation and put
its evidence before you also, and, of course, not only the [s]tate but also
the defense has put on evidence on behalf of the defendant. I say to you,
ladies and gentlemen, that the issue before you is not the thoroughness of
the investigation or the competence of the police. This issue you have to
determine is whether the [s]tate in the light of all the evidence before you
has proved beyond a reasonable doubt that the defendant is guilty on one
or both counts with which he is charged.’’ (Internal quotation marks omit-
ted.) State v. Williams, supra, 169 Conn. 335–36 n.3.
13
In Nieves, the relevant portion of the charge provided: ‘‘During the
course of the case, you’ve heard some discussion or questioning as to
whether the police conducted a thorough investigation and the competency
of the police in this case. The issue before you in this case is not the
thoroughness of the investigation or the competence of the police. The issue
you have to determine is whether the state, in light of the evidence before
you, has proven beyond a reasonable doubt [that] the defendant is guilty
of the crimes charged.’’ (Internal quotation marks omitted.) State v. Nieves,
supra, 106 Conn. App. 57.
14
In Tate, the court instructed the jury in relevant part: ‘‘You’ve heard
questioning regarding the thoroughness of the police investigation in this
case. This question might be a matter of opinion, but the state has put its
evidence before you, and the defense is entitled to make an investigation
and put its evidence before you also. And, of course, not only the state but
also the defense has put on evidence in behalf of the defendant. I tell you
that the issue before you is not the thoroughness of the investigation of the
responding police officer; the issue you have to determine is whether the
state, in light of all the evidence before you, has proved the defendant’s
guilt beyond a reasonable doubt as I have recited that to you. That is the
sole issue.’’ (Internal quotation marks omitted.) State v. Tate, supra, 59
Conn. App. 284.
15
The defendant also cites out-of-state authority and argues that ‘‘the
instruction as given here is in conflict with . . . how similar instructions
are phrased in federal courts and in other states.’’ First, the defendant argues
that the court’s instruction implicates the same concerns as the instruction
in Stabb v. State, 423 Md. 454, 31 A.3d 922 (2011), and Atkins v. State, 421
Md. 434, 26 A.3d 979 (2011). We are not persuaded. The present case is
readily distinguishable from Stabb and Atkins. In those cases, the trial courts
instructed the jury that there was ‘‘no legal requirement for the [s]tate to
utilize any specific investigative technique or scientific test to prove its
case.’’ (Internal quotation marks omitted.) Stabb v. State, supra, 463; Atkins
v. State, supra, 441–42. In both cases, the Court of Appeals of Maryland
determined that the jury instruction invaded the province of the jury and
effectively relieved the state of its burden to prove that the defendant was
guilty beyond a reasonable doubt. Stabb v. State, supra, 472; Atkins v. State,
supra, 455. The court in Atkins explained why the instruction was improper:
‘‘Basically, the instruction directed the jury to ignore the fact that the [s]tate
had not presented evidence connecting the knife to the crime, implying that
the lack of such evidence is not necessary or relevant to the determination
of guilt, and to disregard any argument by defense to the contrary.’’ Atkins
v. State, supra, 453; see also Stabb v. State, supra, 472 (‘‘[i]n giving the . . .
instruction to the jury, the trial court directed effectively the jurors not to
consider the absence of a [sexual assault forensics examination] or corrobo-
rating physical evidence’’).
The court’s instruction in the present case does not implicate such con-
cerns. The instruction does not imply that the evidence regarding inadequate
police investigation was not necessary or relevant to the determination of
guilt. Moreover, the court, in its instruction, clearly articulated the state’s
continuing obligation to prove the defendant’s guilt beyond a reasonable
doubt.
The defendant also cites to instructions used in federal courts, as well
as state courts in Massachusetts. To the extent that the defendant argues
that the court erred because its instruction was different from the instruc-
tions used in these other jurisdictions, we are not persuaded. Even if, as
the defendant argues, the other instructions are ‘‘more balanced’’ or provide
better guidance to a jury, we conclude that the instructions that the court
provided in the present case were correct in law, adapted to the issues, and
sufficient for the guidance of the jury.
16
Our Supreme Court, in Wright, summarized its holding in Collins, includ-
ing its conclusion that the instruction in Collins was not improper. See State
v. Wright, supra, 322 Conn. 282. In doing so, the court did not indicate that
its holding in Wright would render the instruction in Collins improper.
17
The defendant also argues that ‘‘the first sentence of the instruction
[in] the [present] case is a reason to distinguish it from the instructions in
Williams, Tate, Nieves and Collins’’ because the instructions in those cases
‘‘[do not] include language similar to the first sentence of the trial court’s
instruction here . . . .’’ We disagree. The first sentence of the court’s
instruction in the present case with respect to investigative inadequacy
provided: ‘‘You have heard some arguments that the police investigation
was inadequate and that the police in this case were incompetent.’’ The
defendant argues that this sentence ‘‘implies that the defense is attacking
the officers’ character . . . .’’ The instructions in Collins, Williams and
Nieves, however, each similarly mentioned the competence of the police.
See footnotes 11, 12 and 13 of this opinion. We are, therefore, not persuaded
that the first sentence of the court’s instruction provides any basis for
distinguishing this case from the case law in Connecticut. We conclude that
the instruction in the present case, like the instruction in Collins, ‘‘was
phrased in neutral language and did not improperly disparage the defendant’s
claims, or improperly highlight or endorse the state’s arguments and evi-
dence.’’ State v. Collins, supra, 299 Conn. 602.
18
As noted previously, defense counsel argued to the jury: ‘‘[T]his case
screams reasonable doubt. . . . [T]he police completely failed in this case,
and they completely failed [the victim]. They didn’t go back to that scene
that night. They didn’t identify the crime scene. They didn’t take any photos
so that you, ladies and gentlemen, could see how the scene looked that
night. How the lighting looked. They never tried to get any surveillance video.
. . . They didn’t confirm what happened.’’ Defense counsel also argued that
the police ‘‘spent ninety minutes on this investigation’’ and the case ‘‘boil[ed]
down to one witness and what she saw in a split second, and she may very
well believe that [the defendant] did this to her. But the police did nothing
to confirm as to what Officer Goncalves said they needed to do.’’