State v. Sanchez , 166 Conn. App. 665 ( 2016 )

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STATE OF CONNECTICUT v. LUIS SANCHEZ
(AC 38310)
DiPentima, C. J., and Sheldon and Mullins, Js.
Argued March 14—officially released July 5, 2016
(Appeal from Superior Court, judicial district of
Hartford, Mullarkey, J.)
Susan M. Hankins, assigned counsel, for the appel-
lant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and David L. Zagaja, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
MULLINS, J. Following a jury trial, the defendant,
Luis Sanchez, was convicted of one count of murder
in violation of General Statutes § 53a-54a and two
counts of assault in the first degree in violation of Gen-
eral Statutes § 53a-59 (a) (5). On appeal, the defendant
claims that the trial court erred in (1) admitting, as
proof of intent, prior misconduct evidence regarding
his involvement in a shooting that had occurred fifteen
months before the charged crimes, in which he used
the same gun that he used in the charged crimes, and
(2) charging the jury that this misconduct evidence was
admitted to prove the intent elements of the charged
crimes.1 We affirm the judgment of the trial court.
The jury reasonably could have found the following
facts. On the evening of October 6, 2010, the defendant,
his half-brother Justin Bonilla, and his friends Gina
Colon, Santos Gonzalez, Gabriel Rivera, and Akeem
Wilis attended an ‘‘open mic’’ night at the Franklin Bar
and Grill (bar) on the corner of Franklin Avenue and
Brown Street in Hartford. Gonzalez drove the group to
the bar in his car.
At the bar’s entrance, an individual employed by the
event’s organizer to provide security patted down male
patrons to make sure that no one entered with a
weapon. Prior to entering the bar, the defendant con-
cealed a gun under the driver’s seat of Gonzalez’ car.
In the early morning hours of October 7, 2010, some-
one jostled or spilled a drink on a female patron, precipi-
tating a disturbance near the bar’s stage. Bobby Forbes
and Joseph Schroeter were onstage with the performer
when the disturbance began. Shortly after that distur-
bance, a fight broke out elsewhere in the bar. At the
start of the fight, the defendant, Bonilla, and Wilis left
the bar via the Brown Street exit. As the defendant
left the bar, a security guard, Quron Zene, heard the
defendant say ‘‘somebody get a ratchet.’’2 After exiting
the bar, the defendant retrieved his gun from Gonza-
lez’ car.
After the physical fighting broke out, the bar’s owner
began ushering patrons to the exits. Before being
ejected from the bar, Forbes put an empty beer bottle
in the pocket of his red and black jacket.3 As patrons
exited the bar, they congregated at the corner of Frank-
lin Avenue and Brown Street.
The defendant calmly walked from Gonzalez’ car to
a position in front of a bank across the street from the
bar. From there, he fired gunshots into the crowd. He
fired an initial volley of shots into the crowd, then
paused before firing a second volley of shots in the
same direction. In all, he fired twelve shots into the
assembled crowd in the two separate bursts. The defen-
dant’s gunfire struck Jeanna Flores, who was standing
death. The defendant’s gunfire also struck Forbes and
Schroeter, causing them injuries.4
After the shooting, the defendant and his companions
fled the scene in Gonzalez’ car. As the group drove
away, the defendant asked Wilis if he had seen ‘‘the
way [the defendant] let them have it’’ and told Wilis
that he ‘‘had to do it.’’ The following afternoon, the
defendant and Colon fabricated an alibi according to
which the defendant and Wilis left the bar with some
women before the disturbance began.
The defendant and Colon also asked Colon’s cousin,
Aida Rojas, to corroborate their false alibi by telling
the police, if they questioned her, that the defendant
had spent the night at her house. A few weeks later,
Rojas drove Colon and the defendant to the riverfront
in Hartford, where the defendant threw the gun he had
used in the shooting into the river.
Sometime thereafter, the police questioned Rojas.
Rojas initially gave police the false alibi that the defen-
dant was not at the bar, but rather had spent the night
at her house. The defendant also gave the police the
false alibi, telling them that he had left the bar before
any disturbance and had spent the night at Rojas’ house.
Rojas later admitted to the police that the alibi was a lie.
The police also questioned Colon. Colon gave the
police two different and contradictory statements
regarding the shooting outside the bar. When ques-
tioned initially, she did not mention that the defendant
was present, in keeping with the fabricated alibi. Later,
after having been charged with tampering with a wit-
ness and hindering prosecution for having solicited
Rojas to lie, Colon divulged that on the day after the
shooting the defendant told her that ‘‘someone pulled
out a gun and he had to do what he had to do’’ because
otherwise someone could have been shot, and ‘‘it could
have been [Colon].’’
The following procedural history is also relevant. On
October 26, 2011, after the state had convened a grand
jury to investigate the events of October 6-7, 2010,
Michael Sullivan, an inspector in the cold case unit of
the Chief State’s Attorney’s Office, informed the defen-
dant that he was the target of the investigation. Sullivan
told the defendant that he had a right to testify before
the grand jury. The defendant denied knowledge of
or involvement in the shooting. In response, Sullivan
remarked that ‘‘there’s a lot of ways that people die in
a shooting that is not necessarily murder,’’ including
when you shoot at someone else in order to protect
yourself. The defendant maintained that he had nothing
to do with a murder.
Prior to the start of trial, the state filed notice of its
intent to offer prior misconduct evidence. Specifically,
the state sought to offer evidence that in 2009, an indi-
vidual named Fred Colby5 had identified the defendant
as one of two individuals who had threatened him with
automatic handguns, then fired at him as he fled the
scene in his vehicle. The state represented that a 9mm
shell casing recovered from the scene of the 2009 inci-
dent matched the casings recovered in the present case,
thereby establishing that they had been fired from the
same gun. The state sought admission of the evidence
on two separate bases: (1) as relevant to the defendant’s
intent to commit murder and assault; and (2) as evi-
dence of the defendant’s identity as the shooter because
it demonstrated that he possessed the instrumentality
or means to commit these crimes.
On September 12, 2013, the court heard argument
from the parties as to whether it should admit evidence
of the 2009 incident, at the conclusion of which it
reserved decision on the matter. On October 10, 2013,
the court heard additional argument and preliminarily
ruled that the evidence was admissible.
On October 21, 2013, the fifth day of the defendant’s
trial, the court heard testimony outside the presence
of the jury from Megan Pytlik, a lab technician who
had matched the shell casing from the 2009 incident to
the casings recovered in the present case, and from
Pytlik’s supervisor, James Stephenson, who verified the
results of Pytlik’s examination. Afterward, the court
ruled that the evidence of the defendant’s involvement
in the prior shooting was admissible.6
The jury subsequently heard testimony regarding the
2009 incident from three witnesses: Colby; Luis Rai-
mundi, an officer in the Hartford Police Department;
and Pytlik. Colby testified that in June, 2009, in the area
of Bond Street in Hartford, he had an exchange with two
individuals, both of whom were carrying guns. Colby
testified that he fled from the two individuals to his
car, and, as he was driving away, they fired shots at
him, hitting the car’s back windshield. Approximately
one year later, when presented with a photographic
array by the police, Colby identified the defendant as
one of the shooters. When, at some point thereafter,
Colby encountered the defendant in person, the defen-
dant offered him ‘‘a couple grand if I just come plead
the fifth,’’ and told him to ‘‘keep it in the streets.’’ After
the conclusion of Colby’s testimony, the court provided
a limiting instruction to the jury.7
Raimundi then testified that in June, 2009, he had
located Colby when following up on a call that a motor-
ist had struck a pedestrian and attempted to evade
responsibility. Upon locating Colby’s car, Raimundi
noted that its rear windshield was shattered. Raimundi
and his partner also recovered three bullet fragments
and one 9mm Luger shell casing in the vicinity of
Bond Street.
Finally, Pytlik testified that the same gun had fired
the shell casing recovered from the scene of the 2009
incident and the casings recovered in the present case.
At the conclusion of Pytlik’s testimony, the state rested
its case-in-chief, and the court gave the jury another
limiting instruction.8
The defendant elected to testify at trial. On the wit-
ness stand, he admitted that he had fired the shots that
killed Flores and wounded Forbes and Schroeter. He
then claimed, for the first time, that he had acted in
defense of his friends. He testified that he heard an
unidentified individual on the bar’s stage say that he
was going to get his gun from a car. In response to
hearing that, he retrieved his own gun from Gonza-
lez’ car.
The defendant testified that after he had retrieved
his gun, he saw members of the crowd that had gathered
on the corner of Franklin Avenue and Brown Street
arguing with his friends, who were standing in front of
the bar’s Brown Street exit. He became nervous when
he saw a man standing on the corner wearing a black
jacket with red lettering pull a revolver from his pants.
The defendant claimed that he saw that man aim his
revolver at Colon and Bonilla. As a result, the defendant
testified, he fired at the man to protect his friends.9
Initially, he testified that his gun was an automatic, and
its whole clip emptied at once, but, on cross-examina-
tion, he conceded that footage from the bank’s surveil-
lance camera showed him firing some shots, pausing,
and then firing more shots as he backed away. He testi-
fied that he hit the man aiming at Colon and Bonilla,
who fell to the ground and must have dropped his gun.10
He testified that he later disposed of his own gun by
throwing it into the river.
According to the defendant, he initially fabricated an
alibi because he feared that the police would not believe
that he had acted in defense of his friends. The defen-
dant denied that Sullivan had mentioned self-defense,
testifying that if Sullivan had done so, the defendant
would have seized the opportunity to begin telling peo-
ple that he had acted in defense of his friends. During
the state’s rebuttal case, the state played for the jury a
recording of Sullivan’s interview of the defendant, in
which Sullivan told the defendant that ‘‘there’s a lot of
ways that people die in a shooting that is not necessarily
murder,’’ including when you shoot at someone else in
order to protect yourself.
More specifically, in the interview, Sullivan told the
defendant that ‘‘[a]ll I know is what the people tell us,
they put a gun in your hand and you’re shooting and a
girl dies. Now in my eyes that’s murder, unless there’s
an explanation. You know, if somebody else had a gun
say, on the corner, and you were shooting at them
to protect yourself, that’s not necessarily murder, you
know what I’m saying, there’s a lot of different versions
of events that influence what the charge would be.
That’s why we give you an opportunity to explain it,
but that’s your choice.’’
In its final charge to the jury, the court gave another
instruction as to the permissible use of evidence of
the defendant’s prior misconduct.11 Thereafter, the jury
rejected the defendant’s justification of defense of oth-
ers and found the defendant guilty of all charges. The
court subsequently sentenced the defendant to a total
effective term of sixty-five years imprisonment. This
appeal followed. Additional facts will be provided as
necessary.
On appeal, the defendant claims that ‘‘the trial court
erred in admitting as substantive proof of intent, in a
case where intent was the sole disputed issue, extrinsic
misconduct evidence that fifteen months before the
charged incident, the defendant shot at state’s witness
Fred Colby using a gun that was a ballistic match to
the weapon the defendant used in the charged crimes,
and . . . in charging the jury that this misconduct was
admitted to prove the intent elements of the charged
crimes . . . .’’
The state counters that the court properly exercised
its discretion in determining that the prior misconduct
evidence was admissible as proof of intent. The state
also argues that even if the admission of the evidence
was an abuse of discretion, the court’s error was harm-
less because there was ample evidence both to prove
intent and to disprove the defendant’s justification
defense, and, therefore, the admission of the prior mis-
conduct evidence did not substantially affect the ver-
dict. We agree with the state that any error as to the
admission or giving of limiting instructions concerning
the evidence was harmless.
‘‘We begin our review of the trial court’s action by
noting that [a]s a general rule, evidence of prior miscon-
duct is inadmissible to prove that a defendant is guilty
of the crime of which he is accused. . . . Nor can such
evidence be used to suggest that the defendant has a
bad character or a propensity for criminal behavior.
. . . Evidence of prior misconduct may be admitted,
however, when the evidence is offered for a purpose
other than to prove the defendant’s bad character or
criminal tendencies. Conn. Code Evid. § 4-5 (b). Excep-
tions to the general rule precluding the use of prior
misconduct evidence have been recognized in cases in
which the evidence is offered to prove, among other
things, intent, identity, motive, malice or a common
plan or scheme. . . .
‘‘In order to determine whether such evidence is
admissible, we use a two part test. First, the evidence
must be relevant and material to at least one of the
circumstances encompassed by the exceptions. Sec-
ond, the probative value of [the prior misconduct] evi-
dence must outweigh [its] prejudicial effect . . . .
Because of the difficulties inherent in this balancing
process, the trial court’s decision will be reversed only
whe[n] abuse of discretion is manifest or whe[n] an
injustice appears to have been done.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Mer-
riam, 264 Conn. 617, 659–61, 835 A.2d 895 (2003).
‘‘When an improper evidentiary ruling is not constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful. . . . As we have
recently noted, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict. . . . [O]ur
determination that the defendant was harmed by the
trial court’s [evidentiary rulings] is guided by the various
factors that we have articulated as relevant [to] the
inquiry of evidentiary harmlessness . . . such as the
importance of the [evidence] in the prosecution’s case,
whether the [evidence] was cumulative, the presence
or absence of evidence corroborating or contradicting
the [evidence] on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case. . . . Most
importantly, we must examine the impact of the evi-
dence on the trier of fact and the result of the trial.’’
(Internal quotation marks omitted.) State v. Jacobson,
283 Conn. 618, 641–42, 930 A.2d 628 (2007).
The defendant advances several arguments in sup-
port of his claim that evidence of the 2009 shooting
was inadmissible to prove that he intended to cause
death or physical injury when he fired into the crowd
gathered outside the bar in 2010. First, he argues that
‘‘firing a gun, even firing the same gun fifteen months
earlier’’ was irrelevant to his mental state at the time
of the charged crimes. Second, he contends that the
probative value of the evidence was low because ‘‘the
2009 Bond Street incident and the charged 2010
offense[s] were unrelated in any way, other than
through ballistics . . . .’’ Third, he argues that the prej-
udicial effect of the evidence was high because the
prior misconduct and charged offenses were similar,
putting pressure on jurors to infer that if he committed
the earlier act, he had a predisposition to commit the
latter. Finally, he argues that the prejudicial effect of
the evidence was compounded because the evidence
‘‘showed . . . the defendant attacking another alleg-
edly unarmed person, not defending himself or others.’’
(Emphasis omitted.)
After reviewing the trial record and the parties’ argu-
ments on appeal, we conclude that even if we were to
assume that the court abused its discretion by allowing
the jury to consider evidence of the defendant’s prior
misconduct as to the issue of intent, any error was
harmless. In light of the admission of the evidence in
question on an independent, unchallenged basis and
the strength of the state’s case against the defendant,
we can be ‘‘fair[ly] assur[ed] that the error did not
substantially affect the verdict.’’ (Internal quotation
marks omitted.) State v. Jacobson, supra, 283 Conn. 641.
As an initial matter, with respect to the admission of
the prior misconduct evidence itself, we must note that
the court admitted the evidence not only under the
intent exception, but also on the basis that it demon-
strated the defendant’s possession of the instrumental-
ity of the charged crimes, which was relevant to
establishing his identity as the shooter. The defendant
has not challenged the propriety of the court’s admis-
sion of the evidence on this separate basis. Accordingly,
even if the admission of the evidence to prove intent was
improper, there is no claim that the prior misconduct
evidence was not properly before the jury on the issue
of identity. See State v. Merriam, supra, 264 Conn.
667–68 (improper admission of prior misconduct evi-
dence to prove identity was harmless error because
‘‘that evidence was properly before the jury, albeit
under [the common plan or scheme] exception to the
general rule against the admission of prior misconduct
evidence’’). Because the defendant failed to challenge
the court’s admission of this evidence as proof of his
access to the instrumentality of the crime or its instruc-
tion permitting the jury to consider this evidence as it
related to the defendant’s possession of the instrumen-
tality of the crime, any improper admission of this evi-
dence also to prove intent was harmless.
The defendant also claims that the court committed
harmful error in its limiting instructions and final charge
to the jury permitting it to consider the prior misconduct
evidence as proof of intent. He argues that ‘‘because
the basis of admissibility (intent) was the foundational
error in this case, the court’s instruction was the prob-
lem, not the cure.’’ He further argues that no instruction
that permitted the jury to use the evidence as proof of
intent would have been curative because ‘‘to use the
[2009] misconduct to prove the 2010 intent . . . with-
out resorting to character inferences, is clearly beyond
the ability of anyone, let alone a juror faced with the
court’s confused directive.’’ We disagree.
Here, the defendant has not established that the trial
court’s instructions permitting the jury to consider the
prior misconduct evidence to establish his intent sub-
stantially affected the jury’s verdict. On the contrary,
there was ample evidence, apart from the challenged
prior misconduct evidence and the court’s accompa-
nying instructions, to support the jury’s guilty verdict,
both in the form of evidence that the defendant pos-
sessed the requisite intent to cause death or physical
injury when he fired a series of shots at the crowd of
people on the corner outside the bar and in the form of
evidence to undermine the credibility of the defendant’s
justification of defense of others.
‘‘Intent is typically established by circumstantial evi-
dence. . . . Such circumstantial evidence may include
inferences drawn from the conduct of the accused. The
knowing and volitional conduct of a defendant is proba-
tive of his mental state insofar as he may be found to
have intended the ordinary and natural consequences
of his acts.’’ (Citation omitted.) State v. Crafts, 226
Conn. 237, 248, 627 A.2d 877 (1993).
In this case, there was ample evidence from which
the jury reasonably could have concluded that the
defendant possessed the specific intent to cause death
and physical injury.12 The defendant admitted in his trial
testimony that he intentionally fired gunshots at people.
There also was video surveillance evidence that showed
the defendant firing two separate series of gunshots
into the crowd of people. The defendant’s admitted
discharge of a handgun into the crowd assembled out-
side the bar and the video surveillance footage were
evidence from which the jury could have concluded
that he intended to kill or injure another person. See
State v. Otto, 305 Conn. 51, 68, 43 A.3d 629 (2012) (types
of circumstantial evidence of intent to kill include type
of instrument used and manner of use).
In addition, shortly before shooting into the crowd,
the defendant engaged in certain preparatory acts,
namely, he left the bar, went to Gonzalez’ car, retrieved
his gun, and took up a position at the bank opposite
the bar. The jury reasonably could have inferred from
these preparatory acts, as well as from the shooting
itself, that the defendant intended to cause death or
physical injury. See State v. Raguseo, 225 Conn. 114,
120, 622 A.2d 519 (1993) (defendant carrying deadly
weapon prior to homicide may be evidence that defen-
dant intended to cause victim’s death); State v. White,
127 Conn. App. 846, 854, 17 A.3d 72 (same), cert. denied,
302 Conn. 911, 27 A.3d 371 (2011).
A number of the defendant’s actions following the
shooting reasonably supported an inference of con-
sciousness of guilt, which, ‘‘in combination with the
defendant’s use of a deadly weapon provided sufficient
evidence for the jury to find that the defendant intended
to cause the victim’s death.’’13 State v. Moye, 119 Conn.
App. 143, 150, 986 A.2d 1134, cert. denied, 297 Conn.
907, 995 A.2d 638 (2010); State v. Otto, supra, 305 Conn.
73 (‘‘consciousness of guilt evidence [is] part of the
evidence from which a jury may draw an inference of
an intent to kill’’ [internal quotation marks omitted]).
In particular, the defendant and his friends fled from
the scene immediately after the shooting. See State v.
Booth, 250 Conn. 611, 653, 737 A.2d 404 (1999) (‘‘when
a person flees the crime scene . . . it is reasonable to
infer that that person had the intent to murder’’), cert.
denied sub nom. Brown v. Connecticut, 529 U.S. 1060,
120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). Additionally, the
defendant admitted that he adopted Colon’s fabricated
alibi. From the defendant and Colon’s efforts to place
the defendant elsewhere at the time of the crimes, the
jury reasonably could have inferred a consciousness of
guilt, and from there, the requisite intent to cause death
or physical injury. State v. Reid, 193 Conn. 646, 656,
480 A.2d 463 (1984); State v. Pelletier, 85 Conn. App.
71, 81, 856 A.2d 435, cert. denied, 272 Conn. 911, 863
A.2d 703 (2004). Finally, the defendant disposed of the
gun in the river and attempted to persuade Rojas to
corroborate the alibi that he and Colon had fabricated.
See State v. White, supra, 127 Conn. App. 854–55 (dis-
posal of murder weapon and attempt to influence wit-
ness testimony are circumstantial evidence of intent). In
sum, there was ample evidence, apart from the evidence
linking the defendant to the 2009 shooting, from which
the jury could have concluded that he possessed the
intent required for conviction of the charged crimes.
There also was ample evidence on the basis of which
the jury reasonably could have concluded that the state
disproved beyond a reasonable doubt the defendant’s
asserted justification that he had fired a weapon into
the assembled crowd to defend his friends.14 The defen-
dant’s evidence in support of his defense was weak. His
testimony was the only evidence—other than Colon’s
testimony, given after the falsity of the defendant’s alibi
had been exposed, that the defendant told her someone
was aiming a gun at her and Bonilla—supporting his
claim that he was defending his friends. He was the
only individual among many witnesses present at the
scene who testified to seeing a man on the corner dis-
play a gun. Although he testified both that he had seen
a man aim a gun at his friends and that the person he
shot had to have dropped the gun when he was hit by
a bullet, no firearm was found at the scene. See State
v. Saunders, 267 Conn. 363, 374–75, 838 A.2d 186 (jury
could have discredited defendant’s assertion that he
feared victim would shoot him where victim never dis-
played or brandished weapon and no weapon recovered
at scene), cert. denied, 541 U.S. 1036, 124 S. Ct. 2113,
158 L. Ed. 2d 722 (2004).
In contrast to the defendant’s evidence, the state’s
evidence to disprove the defense of others theory was
strong. The state presented evidence that undermined
the credibility of the defendant’s assertion that he
believed a man on the corner was about to fire a gun
at his friends, necessitating his use of deadly force. The
defendant’s calm demeanor both when he left the bar
and when he took up a position in front of the bank
and began firing into the assembled crowd, as displayed
in the various surveillance videos that the state
adduced, belied his claim that he feared someone was
about to fire at his friends. See id., 375 (‘‘the defendant’s
calm demeanor when he fired the shots that killed the
victim suggests that he was not afraid that the victim
was reaching for a gun’’).
The state also presented evidence on the basis of
which the jury could have concluded that the defen-
dant’s belief in the amount of force needed to repel the
alleged attack on his friends was unreasonable. See
footnote 14 of this opinion. As previously noted in this
opinion, the bank’s video surveillance footage indicated
that the defendant fired an initial volley of shots,
paused, and fired a second series of shots. When pre-
sented with the footage, the defendant admitted on
cross-examination that he had fired the shots in two
distinct bursts. Furthermore, although the defendant
also testified that he ran off as soon as he saw the
person with the gun drop to the ground, Flores was the
only shooting victim to drop to the ground; Forbes and
Schroeter both testified that they were running from
the gunfire when they realized that they each had been
shot. Together, ‘‘[t]his evidence supported a finding that
the defendant safely could have stopped firing, but
elected not to do so, even though the victim no longer
posed a threat . . . . Consequently, the jury reason-
ably could have found that the defendant’s actions were
excessive and beyond those reasonably necessary to
repel any attack’’ against his friends. State v. Saunders,
supra, 267 Conn. 376.
The credibility of the defendant’s asserted justifica-
tion defense also was undermined by the combination
of his admission that he previously had fabricated an
alibi and evidence that he began claiming defense of
others only after that justification was suggested to him.
As previously discussed, the defendant and Colon both
admitted that they had fabricated the defendant’s alibi.
In its rebuttal case, the state presented evidence from
which the jury reasonably could have inferred that the
defendant decided to begin claiming that he had acted
in defense of his friends based on the scenario that
Sullivan had suggested when he asked if the defendant
would testify before the grand jury. The defendant did
not claim that he acted to defend his friends until he
testified at his trial. Although he conceded that if Sulli-
van did say something about self-defense, the defendant
would have taken the opportunity and started telling
people that he was defending his friends, he asserted
that Sullivan had not mentioned self-defense. Playback
of the recording of the meeting between Sullivan and
the defendant belied this assertion.
Indeed, Sullivan told the defendant that ‘‘[a]ll I know
is what the people tell us, they put a gun in your hand
and you’re shooting and a girl dies. Now in my eyes
that’s murder, unless there’s an explanation. You know,
if somebody else had a gun say, on the corner, and you
were shooting at them to protect yourself, that’s not
necessarily murder, you know what I’m saying, there’s
a lot of different versions of events that influence what
the charge would be. That’s why we give you an oppor-
tunity to explain it, but that’s your choice.’’ Thereafter,
for the first time, the defendant, on the witness stand,
offered a justification of the shooting that hewed closely
to the scenario that Sullivan had suggested. In sum,
there was ample evidence, apart from the evidence link-
ing the defendant to the 2009 shooting, from which the
jury could have concluded, as was implicit in its verdict,
that the state had disproved the defendant’s justification
of defense of others.
For the foregoing reasons, we conclude that, even
assuming, without deciding, that the court’s instruc-
tions and final charge permitting the jury to consider the
prior misconduct evidence as it bore on the defendant’s
intent were improper, any error was harmless.
The judgment is affirmed.
In this opinion the other judges concurred.
1
At trial, the defendant raised a defense of others defense in relation to
the murder and assault charges. In his opening brief in this appeal, the
defendant claimed that ‘‘the court’s [jury] charge, pursuant to the pattern
instruction on defense of others, engrafted the language ‘honestly and sin-
cerely’ to define the defendant’s ‘actual belief’ in both the necessity to use
force and necessary degree of force, and to define the state’s burden of
disproof, constituted reversible error.’’ In his reply brief and at oral argument,
however, the defendant conceded that the recently decided case of State
v. O’Bryan, 318 Conn. 621, 633, 123 A.3d 398 (2015), in which our Supreme
Court held that ‘‘the well established usage of [the] terms [honestly and
sincerely] in our case law is consistent with the requirement that the defen-
dant in fact . . . believed that the use of deadly force was necessary, before
determining whether that belief was reasonable,’’ is controlling authority
that defeats this claim.
We agree with the defendant that O’Bryan disposes of this claim, and,
therefore, we need not address it in this appeal.
2
Zene explained that the term ‘‘ratchet’’ is a street term for a gun.
3
Wilis testified that just prior to hearing gunfire, he saw two men ‘‘creeping
around the corner’’ from Franklin Avenue to Brown Street. Wilis testified
that one appeared to have a bottle, and the other appeared to have a gun.
He also testified, however, that he ‘‘couldn’t really tell what it was, if it was
a bottle or if it was a gun or not.’’
4
When shots were fired, Forbes testified that he was at the corner of
Franklin Avenue and Brown Street and had just put his left arm across his
friend Cecil Pierce’s chest to restrain the latter from approaching another
patron. Schroeter testified that Forbes was running toward Brown Street
and that he tried to stop Forbes, but shots were fired before he had a chance
to do so.
5
The witness’ name alternately is spelled Coby and Colby. Although the
prosecutor indicated that the correct spelling is Coby, the court reporter
recorded the witness’ name as Colby. For ease of reference, we refer to the
witness as Colby throughout this opinion.
6
The court stated the following: ‘‘I’m going to let the evidence in because
it is exquisitely probative since it identifies the same exact handgun used
in two cases in which the defendant is identified [as the shooter], [in] one
as the only shooter and [in] the other as one of two shooters, showing
access to the instrumentality . . . .’’
7
The court briefly excused the jury after Colby’s testimony, and, upon
its return, gave the following instruction: ‘‘Just to place a context, ladies
and gentlemen, for the last witness and there may be a couple other wit-
nesses, there was some testimony about an incident that is not on trial here
from Mr. Colby. About a different night, different event in which he alleges
misconduct on the part of the defendant, that’s not being admitted to prove
bad character or propensity for criminal tendency of the defendant. Such
evidence is offered for a limited purpose solely to establish the defendant’s
intent in the actual crime that is charged in this case or crimes that are
charged in this case. And potentially as you may hear from other witnesses
to show access to possession of an instrumentality, to wit: a handgun.’’
8
After the state rested its case-in-chief, the court gave the following
instruction: ‘‘I will remind you the witnesses this afternoon, both Mr. Colby
and Ms. Pytlik, were here offering evidence of other acts of misconduct
from the defendant, not admitted to prove his bad character, propensity for
criminal tendencies, admitted solely to show or establish his intent or his
access to the instrumentality involved in the case that is on trial.’’
9
General Statutes § 53a-19 (a) provides in relevant part: ‘‘[A] person is
justified in using reasonable physical force upon another person to defend
himself or a third person from what he reasonably believes to be the use
or imminent use of physical force, and he may use such degree of force
which he reasonably believes to be necessary for such purpose; except that
deadly physical force may not be used unless the actor reasonably believes
that such other person is (1) using or about to use deadly physical force,
or (2) inflicting or about to inflict great bodily harm.’’
10
No gun was recovered from the corner of Franklin Avenue and
Brown Street.
11
The court gave the following limiting instruction: ‘‘[T]he state offered
evidence of another act of misconduct of the defendant. This is not being
admitted to prove the bad character, propensity or criminal tendencies of
the defendant. Such evidence is being admitted solely to show or establish
the defendant’s intent and the defendant’s access to the instrumentality of
the crime, the gun. This instruction refers to the evidence concerning the
alleged incident on Bond Street on June 6, [2009].
‘‘You may not consider such evidence as establishing a predisposition on
the part of the defendant to commit any of the crimes charged or to demon-
strate a criminal propensity. You may consider such evidence if you believe
it and further find that it logically, rationally and conclusively supports the
issues for which it is being offered by the state, but only as it may bear
on the issues of the defendant’s intent and the defendant’s access to the
instrumentality used in this case.
‘‘On the other hand, if you do not believe such evidence, or even if you
do, if you find that it does not logically, rationally and conclusively support
the issues for which it is being offered by the state, namely the defendant’s
intent and the defendant’s access to the instrumentality used, then you may
not consider that testimony for any purpose. You may not consider evidence
of other misconduct of the defendant for any purpose other than the ones
I’ve just told you, because it may predispose your mind uncritically to believe
that the defendant may be guilty of the offense here charged merely because
of the alleged other misconduct. For this reason, you may consider this
evidence only on the issues of the defendant’s intent and the defendant’s
access to the instrumentality used, and for no other purpose.’’
12
Murder requires the specific intent to cause the death of another person;
State v. Raguseo, 225 Conn. 114, 120, 622 A.2d 519 (1993); and assault in
the first degree ‘‘requires that the criminal actor possess the specific intent
to cause physical injury to another person.’’ State v. LaFountain, 127 Conn.
App. 819, 828, 16 A.3d 761, cert. denied, 301 Conn. 921, 22 A.3d 1281 (2011).
13
After providing a generalized instruction regarding consciousness of
guilt, the court in the present case instructed the jury that the defendant’s
statements as to his whereabouts at the time of the shooting, if determined
to be false, could be used as evidence of consciousness of guilt.
14
Self-defense, or defense of a third person, as defined in § 53a-19 (a);
see footnote 9 of this opinion; is a defense, which, when properly raised,
‘‘places the burden on the state to disprove the defendant’s claim beyond
a reasonable doubt. . . .
‘‘[U]nder § 53a-19 (a), a person may justifiably use deadly physical force
in self-defense only if he reasonably believes both that (1) his attacker is
using or about to use deadly physical force against him, or is inflicting or
about to inflict great bodily harm, and (2) that deadly physical force is
necessary to repel such attack. . . . [T]he test a jury must apply in analyzing
the second requirement, i.e., that the defendant reasonably believed that
deadly force, as opposed to some lesser degree of force, was necessary to
repel the victim’s alleged attack, is a subjective-objective one. The jury must
view the situation from the perspective of the defendant. Section 53a-19 (a)
requires, however, that the defendant’s belief ultimately must be found to
be reasonable. . . .
‘‘The subjective-objective inquiry into the defendant’s belief regarding the
necessary degree of force requires that the jury make two separate affirma-
tive determinations in order for the defendant’s claim of self-defense to
succeed. First, the jury must determine whether, on the basis of all of the
evidence presented, the defendant in fact had believed that he had needed
to use deadly physical force, as opposed to some lesser degree of force, in
order to repel the victim’s alleged attack. . . . If the jury determines that
the defendant had not believed that he had needed to employ deadly physical
force to repel the victim’s attack, the jury’s inquiry ends, and the defendant’s
self-defense claim must fail. If, however, the jury determines that the defen-
dant in fact had believed that the use of deadly force was necessary, the
jury must make a further determination as to whether that belief was reason-
able, from the perspective of a reasonable person in the defendant’s circum-
stances. . . . Thus, if a jury determines that the defendant’s honest belief
that he had needed to use deadly force, instead of some lesser degree of
force, was not a reasonable belief, the defendant is not entitled to the
protection of § 53a-19.’’ (Internal quotation marks omitted.) State v. O’Bryan,
318 Conn. 621, 631–33, 123 A.3d 398 (2015).