State v. Morales , 172 Conn. App. 329 ( 2017 )

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STATE OF CONNECTICUT v. ANGEL MORALES
(AC 37867)
Beach, Mullins and Bear, Js.*
Argued November 29, 2016—officially released April 18, 2017
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
Daniel P. Scholfield, with whom, on the brief, was
Hugh F. Keefe, for the appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Robin Krawczyk, senior assistant state’s
attorney, for the appellee (state).
Opinion
BEAR, J. The defendant, Angel Morales, appeals from
the judgment of conviction, rendered after a jury trial,
of intentional manslaughter in the first degree with a
firearm in violation of General Statutes § 53a-55a (a)
and criminal possession of a firearm in violation of
General Statutes § 53a-217 (a) (1) (criminal possession).
On appeal, the defendant claims that the trial court
erred (1) by denying his motion to bifurcate the ele-
ments of criminal possession or to sever the murder
charges brought against him from the criminal posses-
sion charge; (2) in instructing the jury on combat by
agreement; and (3) in refusing to instruct the jury on
the common-law defense of necessity. We affirm the
judgment of the trial court.
The jury reasonably could have found the following
facts. On the evening of August 29, 2013, the defendant
drove with his friend, Christopher Spear, and two
female companions to a nightclub in downtown Hart-
ford known as ‘‘Up or On the Rocks.’’ The defendant
parked his car in a nearby parking lot located in the
area of High Street and Church Street. Also at the club
that night were the victim, Miguel Delgado, his brother,
Jose Delgado,1 and a friend, Steven Castano, all of whom
had arrived by taxi. While on the second floor of the
club and with the defendant present, Delgado and Spear
bumped into each other; Spear spilled his drink on
Delgado. An argument ensued, during which Spear
made a racially charged threat to shoot someone.
Returning from the bar, Castano found the two men
arguing and tried to separate them. Spear, however,
slapped the drink Castano was holding at him, the vic-
tim, and Delgado. At that point, the club’s security
escorted Spear, the defendant, and their companions
out of the club while detaining the victim, Delgado,
and Castano inside the club in an effort to defuse the
situation and prevent violence.
Club security held the victim and Delgado in the club
for about ten minutes. When they left, Delgado and
Spear renewed their argument outside of the nightclub
where the defendant had been waiting with Spear. With
the defendant present, Spear again threatened to shoot
someone. Although their friends, but not the defendant,
attempted to defuse the altercation, Delgado and Spear
agreed to engage in a fistfight, and the parties proceeded
to the parking lot where the defendant had parked
his car.
When the men reached the parking lot, Spear struck
Delgado on the head with a hard object injuring him.
When Spear attempted to retrieve the object, which had
fallen to the ground, Delgado punched him, rendering
him unconscious. Despite the fact that Spear was
unconscious on the ground, Delgado continued to beat
Spear, causing him significant injuries to his head
and face.
Meanwhile, the defendant recognized that the object
with which Spear struck Delgado was a gun. The defen-
dant went to pick it up, but the victim, who was behind
him, engaged the defendant and the two men struggled
with each other on the ground. In the course of the
ensuing struggle, the defendant obtained the gun. As
the victim stood up, he struck the defendant in the face
and the defendant fired a single shot, which struck the
victim in the chest.
The victim ran toward Allyn Street where he col-
lapsed on the sidewalk. Despite intervention by Del-
gado, a passerby who administered cardiopulmonary
resuscitation, and medical personnel, the victim later
died at the hospital at 2:15 a.m. of a gunshot wound to
his chest.
After shooting the victim, the defendant fled. He dis-
carded the gun in a garbage receptacle. He then drove
away, leaving behind Spear and the women who had
accompanied them.
On October 29, 2014, in a single long form informa-
tion, the state charged the defendant with murder in
violation of General Statutes (Rev. to 2013) § 53a-54a
and reckless manslaughter in the first degree with a
firearm in violation of § 53a-55a (a) (murder charges),
as well as criminal possession. At trial, the defendant
stipulated that he shot the victim, but he testified both
that the gun accidently discharged and that he was
acting in self-defense. The jury returned a verdict of
not guilty on the murder charge, but it found him guilty
of the lesser included offense of intentional manslaugh-
ter in the first degree with a firearm. Additionally, the
jury found the defendant guilty of reckless manslaugh-
ter in the first degree with a firearm, and criminal pos-
session. The court accepted the jury’s verdict but a
month later vacated the guilty verdict on the reckless
manslaughter charge because of double jeopardy con-
cerns. The court then sentenced the defendant to thirty-
five years incarceration, suspended after twenty years,
with five years probation on the intentional manslaugh-
ter conviction, and five years incarceration and a fine
of $5000 for the criminal possession conviction. The
court ordered that the sentences be served concurrently
for a total effective sentence of thirty-five years incar-
ceration, suspended after twenty years, with five years
probation, and a $5000 fine. This appeal followed. Fur-
ther facts will be set forth as necessary to the resolution
of this appeal.
I
The defendant contends on appeal that the court
abused its discretion when it denied his motion to either
bifurcate or sever the charges against him. Specifically,
he argues that he was prejudiced by having to defend
simultaneously the murder charges and the criminal
possession charge. He claims prejudice because, in
order to prove criminal possession, the state had to
present evidence that he previously had been convicted
of a felony. We disagree.
The following additional facts and procedural history
are necessary for the resolution of this claim. On the
first day of evidence and after the jury had been
selected, the defendant moved to bifurcate or sever
the charges against him. He proposed two alternative
remedies. First, he asked that the court bifurcate the
proof of the elements of criminal possession, submitting
to the jury in the first part of the trial only the element
of possession. Then, if the jury found that the element
of possession was proven, he would stipulate to having
been previously convicted of a felony. Alternatively, he
asked the court to sever2 the criminal possession charge
from the murder charges, and to hold consecutive trials
using the same jury. Conceding that the charges were
logically connected, the defendant argued that proof
of the convicted felon element of criminal possession
would be unduly prejudicial if he did not testify on his
own behalf in this case,3 as was his right. Based on the
state’s assertion that it would agree to stipulate to the
prior felony conviction without naming the conviction
or underlying conduct, the court determined that, with
a limiting instruction, any prejudicial impact of trying
the charges together would be circumscribed, and,
accordingly, it denied the motion.
A
The defendant first sought to bifurcate the elements
of criminal possession. Section 53a-217 (a) provides in
relevant part: ‘‘A person is guilty of criminal possession
of a firearm . . . when such person possesses a fire-
arm . . . and (1) has been convicted of a felony . . . .’’
As this court has previously stated: ‘‘No useful purpose
would be served by a separate information alleging only
the prior conviction. . . . [A]n information alleging
only that a defendant possessed a handgun, without
mention of his prior conviction, would fail to allege
any cognizable offense under our penal code.’’ State v.
Banta, 15 Conn. App. 161, 173, 544 A.2d 1226, cert.
denied, 209 Conn. 815, 550 A.2d 1086 (1988). Accord-
ingly, the court did not abuse its discretion when it
denied the defendant’s motion to bifurcate the elements
of criminal possession.
B
In the alternative, the defendant sought to sever the
criminal possession charge from the murder charges.
Before analyzing the defendant’s claim, we set forth
the applicable law and standard of review. ‘‘A judicial
authority may order that two or more indictments or
informations or both, whether against the same defen-
dant or different defendants, be tried together. . . . A
judicial authority may also order separate trials if it
appears that a defendant is prejudiced by joinder. . . .
This does not mean that severance is to be had for the
asking. . . . The question of severance lies within the
discretion of the trial court. We will not disturb the trial
court’s conclusion on the issue absent a clear abuse of
discretion. The discretion to sever a trial should be
exercised only if a joint trial will substantially prejudice
the defendant. Substantial prejudice is more than disad-
vantage and the formidable task of demonstrating an
abuse of discretion and that a joint trial resulted in
substantial prejudice falls to the defendant. . . . Sim-
ply put, the test to be applied is whether substantial
injustice will result if the charges are tried together.’’
(Citations omitted; internal quotation marks omitted.)
State v. Jones, 234 Conn. 324, 343, 662 A.2d 1199 (1995).
In determining whether a refusal to order separate
trials was an abuse of discretion when one of the
charges involves proof of the prior commission of a
felony, this court considers the five factors enunciated
in State v. Banta, supra, 15 Conn. App. 170–71:4 ‘‘[1]
the manner in which the evidence entered the case
and the extent of the jury’s knowledge of the facts
underlying the prior felony conviction . . . [2] the ade-
quacy of any cautionary instructions given by the court
. . . [3] the use of the prior felony evidence by the
prosecution in argument to the jury . . . [4] the likeli-
hood that the prior felony conviction evidence will
inflame the passions of the jurors in light of the nature
of the offenses charged . . . and [5] the strength of the
evidence against the defendant.’’5 (Citations omitted.)
The first factor requires consideration of the manner
in which the evidence entered the case and the amount
of detail that the jury received regarding the prior felony
conviction. The jury first learned of the defendant’s
prior felony conviction at the close of the state’s case-
in-chief by way of a stipulation that stated only that the
defendant had ‘‘previously been convicted of a felony.’’
Additionally, the defendant admitted during his testi-
mony that he was convicted of felonies in 2008 and
2013. The jury did not hear any details of the defendant’s
prior convictions. This factor does not favor him.
The second factor addresses the adequacy of the
cautionary instructions given by the court. After the
stipulation was read to the jury, the court immediately
instructed the jury that it was free to accept or reject
the stipulation and that it was not to speculate as to
the nature of the felony.6 In its final instructions to the
jury,7 the court informed the jury that it must consider
separately each of the charges. The court directed the
jury to consider the stipulation to a prior conviction as
evidence to satisfy an element of criminal possession.
Additionally, the court instructed that the jury must
accept the stipulation as fact but the stipulation did not
establish proof of an element of the crime beyond a
reasonable doubt. The court instructed the jury, how-
ever, that it was not to consider the defendant’s prior
felony convictions as an indication of his guilt with
respect to the other crimes charged, but only as it
related to his credibility with respect to his testimony
concerning each of those crimes. The court also advised
the jury that the stipulation was ‘‘to be used only for
the specific purpose it was entered for and not to be
used for any other purpose.’’
The defendant argues that both the court’s instruction
to the jury immediately after the stipulation was read
and its final charge to the jury were inadequate. Specifi-
cally, he contends that the court failed to provide a
sufficient contemporaneous limiting instruction when
the stipulation was read to the jury and that the court
failed to caution at any point that the stipulation could
not be considered to prove any violent propensities. A
trial court generally is not obliged to give a limiting
instruction sua sponte; State v. Crenshaw, 313 Conn.
69, 90 n.16, 95 A.3d 1113 (2014); and, a fortiori, nor is
it required to give a contemporaneous limiting instruc-
tion. State v. Willoughby, 153 Conn. App. 611, 618, 102
A.3d 1118 (2014) (court not required to give contempo-
raneous limiting instruction on admissible hearsay
statement); see also William C. v. Commissioner of
Correction, 126 Conn. App. 185, 190, 10 A.3d 115 (court
not required to give contemporaneous limiting instruc-
tion on constancy of accusation testimony), cert.
denied, 300 Conn. 922, 14 A.3d 1007 (2011).
The defendant did not request any contemporaneous
limiting instruction. The court gave a limiting instruc-
tion during the charge to the jury on the use of the
prior felony evidence. Although the instruction did not
address the use of the evidence for violent propensities,
there was no evidence to suggest that either of the
defendant’s felony convictions was for a crime of vio-
lence, and the court specifically instructed the jury not
to speculate as to the nature of the offense. In the
absence of evidence to the contrary, we presume that
the jury followed the trial court’s instructions. State v.
Jamison, 320 Conn. 589, 607, 610, 134 A.3d 560 (2016).
Therefore, we conclude that the court’s instructions did
not mislead the jury and, thus, the second factor does
not favor the defendant.
The third factor requires this court to consider the
use of the prior felony evidence by the prosecution in
argument to the jury. In her closing arguments with
respect to criminal possession, the prosecutor stated,
‘‘And there’s a stipulation in evidence that he has pre-
viously been convicted of a felony and on the stand he
indicated that he had been. That count should be guilty
as well.’’ It is unlikely that such a brief comment that
merely summarized the relevant evidence, and was pre-
sented without embellishment, would substantially
prejudice the defendant and, therefore, this factor does
not favor him.
The fourth factor considers the likelihood that the
prior felony conviction evidence will inflame the pas-
sions of the jurors in light of the nature of the offenses
charged. As stated, the jurors learned nothing of the
nature of the felony convictions. ‘‘Although the stipula-
tion may have been disadvantageous to the defendant,
it was an element that necessarily had to be proven
under § 53a-217.’’ State v. Thompson, 81 Conn. App.
264, 287, 839 A.2d 622, cert. denied, 268 Conn. 915, 847
A.2d 312 (2004). This factor does not favor the
defendant.
The fifth factor is the strength of the evidence against
the defendant. The jury was presented with evidence
that the defendant was present during the entire course
of events, including both inside and outside the club,
and during the subsequent altercation between Spear
and Delgado in the parking lot. Rather than leave at
any time, he stayed throughout with his friend Spear,
even though Spear had threatened to shoot people at
least twice that evening. During the altercation in the
parking lot, the defendant saw the gun after it had fallen
to the ground, ran toward it rather than away from it,
struggled for it, and shot the victim with it. He stipulated
and testified that he shot the victim.
The matter for the jury to decide was whether the
defendant possessed the requisite mental state—the
necessary specific intent—to be convicted of murder
or manslaughter, or whether the killing was justified
as self-defense. The jury returned a verdict of not guilty
on the murder charge but guilty of the lesser included
offense of intentional manslaughter in the first degree
with a firearm in violation of § 53a-55a (a). Although
the defendant claimed that he acted in self-defense,
he also repeatedly testified that the shooting was an
accident. He thus testified inconsistently about his state
of mind that evening and his description of the events
leading up to and including the shooting. Accordingly,
there was direct evidence in the form of the defendant’s
admission and acknowledgement that he shot the vic-
tim. His testimony was equivocal and, therefore, suffi-
cient for the jury to decide his mental state. The fifth
factor does not weigh in favor of the defendant.
Applying the five Banta factors to this case, we con-
clude that the trial court did not abuse its discretion
in denying the defendant’s motion to sever the charges
against him.
II
The defendant claims that the court improperly
instructed the jury. First, he claims that the court erred
when it gave a combat by agreement instruction
because, he argues, there was a complete lack of evi-
dence of such an agreement. Second, he claims that
the court erred when it denied his request to charge
the jury on the defense of necessity as to the criminal
possession charge.
Before addressing the defendant’s claims, we set
forth the well established standard of review for claims
of instructional error. ‘‘An improper instruction on a
defense, like an improper instruction on an element of
an offense, is of constitutional dimension.’’ (Internal
quotation marks omitted.) State v. Clark, 264 Conn. 723,
729, 826 A.2d 128 (2003). ‘‘[I]ndividual jury instructions
should not be judged in artificial isolation, but must be
viewed in the context of the overall charge. . . . The
pertinent test is whether the charge, read in its entirety,
fairly presents the case to the jury in such a way that
injustice is not done to either party under the estab-
lished rules of law. . . . Thus, [t]he whole charge must
be considered from the standpoint of its effect on the
[jurors] in guiding them to the proper verdict . . . and
not critically dissected in a microscopic search for pos-
sible error. . . . Accordingly, [i]n reviewing a constitu-
tional challenge to the trial court’s instruction, we must
consider the jury charge as a whole to determine
whether it is reasonably possible that the instruction
misled the jury. . . . In other words, we must consider
whether the instructions [in totality] are sufficiently
correct in law, adapted to the issues and ample for
the guidance of the jury.’’ (Internal quotation marks
omitted.) State v. Hampton, 293 Conn. 435, 452–53, 988
A.2d 167 (2009).
A
In the present case, the defendant claims that the
court erred when it gave a combat by agreement instruc-
tion because there was a complete lack of evidence of
such an agreement. He does not challenge the substance
of the court’s instructions. We conclude that the court’s
instruction did not mislead the jury.
‘‘The trial court should not submit to the jury any
issue that is foreign to the facts in evidence or for which
no evidence was offered. . . . In reviewing a claim that
there was insufficient evidence to support an instruc-
tion, the reviewing court must consider the evidence
in the light most favorable to upholding the instruction.
. . . The question on appeal is whether, viewing the
evidence in this light, it was sufficient to support a
reasonable inference that the physical force employed
by the defendant was the product of an agreement not
authorized by law.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Johnson, 53 Conn. App.
476, 480–81, 733 A.2d 852, cert. denied, 249 Conn. 929,
733 A.2d 849 (1999).
Although an individual may justifiably use deadly
physical force in self-defense under General Statutes
§ 53a-19,8 certain exceptions under that section pre-
clude the defense. Subsection (c) of § 53a-19 provides
in relevant part: ‘‘Notwithstanding the provisions of sub-
section (a) of this section, a person is not justified in
using physical force when . . . (3) the physical force
involved was the product of a combat by agreement
not specifically authorized by law.’’ ‘‘A jury instruction
regarding the combat by agreement exception to self-
defense is warranted when the evidence is sufficient
to support a reasonable inference that such a mutual
combat occurred. . . . The agreement required by
. . . § 53a-19 (c) (3) need not be formal or express.
. . . Such an agreement may be tacit and inferred from
the facts and circumstances of the case.’’ (Citations
omitted; internal quotation marks omitted.) State v.
O’Bryan, 318 Conn. 621, 637, 123 A.3d 398 (2015).
We have reviewed the evidence presented at trial and
conclude that there was sufficient evidence to warrant
the court’s instruction. The court reasonably could have
determined that there was sufficient evidence, if
believed, from which the jury could have found that
the defendant entered into a tacit or informal agreement
to engage in unlawful combat. For example, the defen-
dant was present for the entirety of each altercation
between Spear and Delgado, including when Spear
threatened to shoot people at least twice. The club’s
security team found it necessary to separate the groups
in an attempt to defuse the situation and prevent vio-
lence. Once escorted out of the club, instead of leaving
the area, the defendant and Spear waited for the victim
and his friends. The defendant then accompanied Spear
to the parking lot after Spear and Delgado had explicitly
agreed to a fistfight. After Spear struck Delgado with
a hard object, which then dropped on the ground, the
defendant was the first to run toward what he had
identified as a gun. There is no evidence that at any time
the defendant left the area of the agreed and ongoing
altercation, telephoned the police, attempted to con-
vince Spear to leave, telephoned for medical help for
Spear, or attempted to defuse the situation.
In summary, reviewing the evidence as a whole, the
court reasonably could have determined that there was
sufficient evidence of a tacit or informal agreement
among at least some of those present, including the
defendant, growing out of and related to the agreement
between Spear and Delgado. Accordingly, the court had
the discretion to submit to the jury the question of
whether the combat by agreement exception to the
defendant’s claim of self-defense had been proved by
the state, assuming that the jury found prior to consider-
ing that exception that the defendant was acting in
self-defense.9 Accordingly, we conclude that the court
properly exercised its discretion to charge the jury on
the combat by agreement exception to the defendant’s
claim of self-defense.10
B
The defendant also claims that the court erred when
it denied his request to present a necessity instruction
to the jury as to the criminal possession charge. In
response, the state contends that the court properly
refused to instruct the jury on necessity because the
evidence did not support the instruction. We agree with
the state.
The following additional procedural history is rele-
vant to the resolution of this claim. On November 17,
2014, the day that trial began, the defendant filed a
request to charge the jury on necessity concerning the
criminal possession charge. After the prosecution and
defense rested their cases, the court heard argument
on the necessity charge on November 19, 2014. The
defendant argued that the evidence clearly supported
the charge, utilizing the three factors set forth in State
v. Wright, 106 Conn. App. 295, 305, 942 A.2d 430, cert.
denied, 286 Conn. 921, 949 A.2d 482 (2008), and State
v. Marsala, 59 Conn. App. 135, 142, 755 A.2d 965, cert.
denied, 254 Conn. 948, 762 A.2d 905 (2000). The state
objected, citing State v. Wright, 77 Conn. App. 80, 822
A.2d 940, cert. denied, 266 Conn. 913, 833 A.2d 466
(2003). The court took the arguments under advisement
as it prepared its instructions. At the charge conference
the next day, the defendant renewed his request for
an instruction on necessity, arguing that the evidence
supported that defense, and the state again objected.
The court stated that it did not think that the case law
supported a necessity charge.11 The court concluded
that it would not give the instruction but noted the
defendant’s objection. The court did not instruct the
jury on the defense of necessity and, after the charge
had been given, the defendant took exception to the
court’s failure to charge.
In reviewing a claim that the court failed to give a
requested charge, our standard of review is well settled.
‘‘A fundamental element of due process is the right of
a defendant charged with a crime to establish a defense.
. . . An improper instruction on a defense, like an
improper instruction on an element of an offense, is of
constitutional dimension. . . . [T]he standard of
review to be applied to the defendant’s constitutional
claim is whether it is reasonably possible that the jury
was misled. . . . In determining whether the jury was
misled, [i]t is well established that [a] charge to the
jury is not to be critically dissected for the purpose of
discovering possible inaccuracies of statement, but it
is to be considered rather as to its probable effect [on]
the jury in guiding [it] to a correct verdict in the case.
. . . The test to be applied to any part of a charge is
whether the charge, considered as a whole, presents
the case to the jury so that no injustice will result.
. . . In reviewing the trial court’s failure to charge as
requested, we must adopt the version of facts most
favorable to the defendant [that] the evidence would
reasonably support. . . . A challenge to the validity of
jury instructions presents a question of law over which
[we have] plenary review.’’ (Citations omitted; internal
quotation marks omitted.) State v. Singleton, 292 Conn.
734, 745–46, 974 A.2d 679 (2009).
As to his claim of necessity, ‘‘[t]he defendant is
required to make a preliminary showing through an
offer of proof before the necessity defense may be sub-
mitted to the jury. . . . Therefore, as a threshold ques-
tion of law, the trial court must determine whether a
necessity defense is warranted under the facts pre-
sented by the defendant. . . . If the court determines
that there is sufficient evidence available to support
the defense of necessity, then a defendant is entitled
as a matter of law to a defense of necessity instruction.’’
(Citations omitted.) State v. Woods, 23 Conn. App. 615,
617–18, 583 A.2d 639 (1990).
‘‘Our statutory definition of the defense of justifica-
tion, General Statutes §§ 53a-16 and 53a-17, does not
include ‘necessity’ as a recognized defense to a criminal
charge. Indeed, our Supreme Court has indicated that
the defense of necessity has no statutory basis in Con-
necticut. . . . At common law, the defense of necessity
has been recognized under certain narrowly defined
circumstances. . . . The defense rests upon the propo-
sition that there may be circumstances where the value
protected by the law is, as a matter of public policy,
eclipsed by a super[s]eding value which makes it inap-
propriate and unjust to apply the usual criminal rule.
. . . The defense of necessity traditionally covered the
situation where physical forces beyond the actor’s con-
trol rendered illegal conduct the lesser of two evils. . . .
The defense, however, deals with obvious and generally
recognized harms, not with those which are debatable
and, indeed, the subject of legislation and government
regulation.’’ (Citations omitted; footnotes omitted;
internal quotation marks omitted.) State v. Drummy,
18 Conn. App. 303, 308–309, 557 A.2d 574 (1989); see
also State v. Joseph, 161 Conn. App. 850, 852–53 n.3,
129 A.3d 183 (2015), cert. denied, 320 Conn. 923, 133
A.3d 878 (2016).
‘‘Where an offer of proof is made with respect to a
defense and it is clear from the offer of proof that the
defense is insufficient as a matter of law, the trial court
may properly refuse to permit evidence of the defense
to be submitted to the jury. . . . This court has . . .
adopted a definition of the common law defense of
necessity that requires a showing by the defendant (a)
that there [was] no . . . legal alternative available, (b)
that the harm to be prevented [was] imminent, and (c)
that a direct causal relationship [may] be reasonably
anticipated to exist between defendant’s action and the
avoidance of harm.’’ (Citation omitted; internal quota-
tion marks omitted.) State v. Marsala, supra, 59 Conn.
App. 142.
In the present case, the elements of the defendant’s
necessity defense as to the criminal possession charge
are similar to his self-defense arguments as to the other
charges relating to his use of the gun. On appeal, he
argues, on the basis of his own testimony at trial, that
he saw the gun fall to the ground but that he did not
know from where it came. He also argues on appeal
that he testified that he attempted to obtain control of
the gun because the victim was attempting to do the
same thing. The defendant, however, testified at trial
that he was the first to attempt to pick up the gun and
that the victim attacked him from behind. At no point
did the defendant testify that he ran to pick up the gun
because the victim was attempting to do so.
Although the defendant attempts to meld the grounds
for his necessity affirmative defense as to the criminal
possession charge with his self-defense claims as to the
murder charges, we examine his necessity claims from
the initial time that the opportunity to possess or control
the gun presented itself. In considering the defendant’s
request for a necessity charge, the court reasonably
could have determined from the evidence that it and
the jury had heard, that when the gun fell to the ground
and the defendant noticed it, he had lawful options
available to him other than running toward it to pick
it up. As the state argued at trial, he could have run
away from the gun and left the area of the altercation.
Additionally, if his concern was the protection of others,
he could have shouted a warning that there was a gun
present so they also could have fled the area. He also
could have shouted for the police or for other help, run
back to the nightclub, or placed a 911 call. Each of
these is a lawful alternative to his decision to obtain
possession of the gun.12 Accordingly, because he failed
to present evidence to satisfy the first prong of the
defense of necessity, the court reasonably determined
that the defendant was not entitled to an instruction
on that defense.
Contrary to the defendant’s contention, the trial court
did not abuse its discretion in denying his motion to
bifurcate or sever, nor did the court err in instructing
the jury.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Although Miguel Delgado and Jose Delgado share a surname, herein we
refer to Miguel Delgado as the victim and to Jose Delgado by his surname.
2
The defendant inartfully presents both of his alternatives as bifurcations.
‘‘The term ‘bifurcation’ normally is used where one case is split into multiple
parts. For example, a jury deliberates on liability and, after determining that
liability exists, subsequently determines damages. Here, two separate cases
were joined for trial, gun charges and narcotics charges, and severance is
the appropriate term.’’ State v. Fleury, 135 Conn. App. 720, 734 n.3, 42 A.3d
499 (Flynn, J., concurring), cert. denied, 305 Conn. 919, 47 A.3d 388 (2012).
Therefore, when the defendant in the present case seeks to separate his
criminal possession charge from his murder charge, he seeks a severance.
3
The defendant ultimately did testify in his trial.
4
The defendant argues that, in analyzing the prejudicial effect of severance
utilizing the Banta factors, the court must view the potential prejudice
through the lens of State v. Jones, supra, 234 Conn. 324. We have considered
Jones and find that the defendant’s reliance upon it is misplaced.
5
The Banta court added, ‘‘Another factor which, of course, must be
considered in the appropriate case is the effect of the joinder upon a defen-
dant’s right to testify or not to testify.’’ State v. Banta, supra, 15 Conn. App.
171 n.3. We need not consider that factor in the present case, however,
because the defendant has not claimed on appeal that the court violated
his constitutional rights to testify or not testify by the failure to sever the
murder charges from the criminal possession charge.
6
The court instructed the jury as follows: ‘‘You’ll have copies of the
stipulations with you during your deliberations. There are rules concerning
the stipulation. You’ll receive those when I give the instructions. But those
you can determine, accept or reject as you consider it relevant.
‘‘Now, as far as the convicted of a felony, don’t speculate as to what it
could be. Many, many offenses are felonies in the state of Connecticut. So
I’m asking you not to speculate as to what it could or couldn’t have been.’’
7
When instructing the jury regarding the defendant’s prior felony convic-
tions and the stipulations entered, the court instructed as follows:
‘‘In this case evidence was introduced to show that the defendant was
convicted of a felony, which is any crime for which a person may be incarcer-
ated for more than one year. Evidence of the commission of a crime other
than the one charged generally is not admissible to prove the guilt of the
defendant. In this particular case, the commission of other crimes by this
defendant has been admitted into evidence for the purpose of affecting his
credibility. You must weigh the testimony along with all the other evidence
in this case. You may consider the convictions of the defendant only as
they bear on his credibility, and you should determine that credibility upon
the same considerations as those given to any other witness.
‘‘With respect to count three, [criminal possession] evidence of the com-
mission of a felony can be considered by you during your deliberations
concerning the elements of that crime.
***
‘‘You will recall that I have ruled some testimony and evidence have been
allowed for a limited purpose. Any testimony or evidence which I identify
as being limited to a purpose, you will consider only as it relates to the
limit for which it was allowed, and you shall not consider it—you shall not
consider such testimony and evidence in finding any other facts as to any
other issue.
‘‘In this case, evidence in the form of a stipulation between the parties
was introduced to show that the defendant was convicted of a felony and
further that the defendant was the shooter on the evening in question. A
stipulation is an agreement between the parties concerning some fact, which
you as the jury are bound to accept as fact during your deliberations. A
stipulation does not, however, establish proof of the element of the crime
beyond a reasonable doubt. The stipulation is to be used only for the specific
purpose it was entered for and not to be used for any other purpose. The
stipulation does not include credibility or the weight you give to the exhibit.’’
8
General Statutes § 53a-19 provides in relevant part: ‘‘(a) Except as pro-
vided in subsections (b) and (c) of this section, 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. . . .
‘‘(c) Notwithstanding the provisions of subsection (a) of this section, a
person is not justified in using physical force when . . . (3) the physical
force involved was the product of a combat by agreement not specifically
authorized by law.’’
9
If the jury found that the state had proved beyond a reasonable doubt
that the defendant was not acting in self-defense, then the jury would not
have had to reach, consider, and decide whether the combat by agreement
exception negated the defendant’s self-defense claim. See State v. O’Bryan,
supra, 318 Conn. 631, 637.
10
The defendant also argues on appeal that it was improper for the court
to consider the combat by agreement instruction without a request by the
state or the defendant, and to determine that the jury should decide whether
the evidence supported a finding that the defendant, Spear, and Delgado,
among others, had entered into an express or tacit agreement to fight prior
to gathering in the parking lot. We disagree. ‘‘[W]e must consider whether
the instructions [in totality] are sufficiently correct in law, adapted to the
issues and ample for the guidance of the jury.’’ (Internal quotation marks
omitted.) State v. Strong, 122 Conn. App. 131, 140, 999 A.2d 765, cert. denied,
298 Conn. 907, 3 A.3d 73 (2010); see also State v. Riddick, 153 Conn. App.
69, 78, 100 A.2d 438 (‘‘the trial court must correctly adapt the law to the
case in question and must provide the jury with sufficient guidance in
reaching a correct verdict’’ [internal quotation marks omitted]), cert. denied,
315 Conn. 904, 104 A.3d 757 (2014). The statute under which the defendant
raises his self-defense claim, § 53a-19, includes combat by agreement as an
enumerated exception. Given that it is the duty of the court to instruct the
jury on the law, adapted to the facts of the case, and because we conclude
that sufficient facts supported a combat by agreement instruction, we con-
clude that the court did not abuse its discretion by including that instruction
in its draft instructions provided to counsel, and subsequently to the jury.
See Perez v. Cumba, 138 Conn. App. 351, 378, 51 A.3d 1156 (‘‘[i]t thus was
incumbent on the court to provide the jury with instructions adapted to
[the issues presented]’’), cert. denied, 307 Conn. 935, 56 A.3d 712 (2012).
11
On appeal, the defendant argues that the court erred in determining
that the instruction was unwarranted because it believed that instruction
was prohibited merely because there was no authority requiring it. We
cannot agree that the court erred in concluding that it could not give the
instruction because no law required it; the court made no such conclusion.
See Johnson v. de Toledo, 61 Conn. App. 156, 162, 763 A.2d 28 (2000) (‘‘It
is important to recognize that a claim of error cannot be predicated on an
assumption that the trial court acted incorrectly. . . . Rather, we are enti-
tled to assume, unless it appears to the contrary, that the trial court . . .
acted properly, including considering the applicable legal principles.’’ [Inter-
nal quotation marks omitted.]), appeal dismissed, 258 Conn. 732, 785 A.2d
192 (2001).
12
We also note that other jurisdictions have added factors to the defense
of necessity in the context of unlawful possession that make the defense
unavailable when the defendant recklessly or negligently placed himself in
circumstances in which it was probable that he would be forced to choose
the criminal conduct. See, e.g., United States v. Ridner, 512 F.3d 846, 850
(6th Cir. 2008) (‘‘emphasiz[ing] that the keystone of the analysis is that the
defendant must have no alternative—either before or during the event—to
avoid violating the law’’ [internal quotation marks omitted]); see also United
States v. Gant, 691 F.2d 1159, 1162–63 (5th Cir. 1982); State v. Crawford,
308 Md. 683, 699, 521 A.2d 1193 (1987).