State v. Magaraci ( 2020 )

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STATE OF CONNECTICUT v. ANTHONY MAGARACI
(AC 42264)
DiPentima, C. J., and Keller and Flynn, Js.
Syllabus
Convicted, after a jury trial, of the crime of assault in the first degree in
connection with an altercation between the defendant and W during
which the defendant stabbed W and B with a knife, the defendant
appealed to this court. He claimed, inter alia, that there was insufficient
evidence to support his conviction because the state failed to disprove
beyond a reasonable doubt that he acted in self-defense. Held:
1. The state produced sufficient evidence to disprove the defendant’s theory
of self-defense beyond a reasonable doubt, as there was evidence, which
the jury reasonably could have credited, that the defendant was the
initial aggressor who had lunged at and stabbed W and, in the process,
had stabbed B, and the jury was free to disbelieve the defendant’s version
of events; moreover, the jury reasonably could have determined that
the state carried its burden of proving beyond a reasonable doubt that
the defendant used deadly force against W despite the fact that he had
actual knowledge of his ability to retreat safely, as he admitted on cross-
examination that he could have walked away from W.
2. This court declined to review the merits of the defendant’s claim that he
was deprived of his constitutional right to a unanimous verdict when
the trial court improperly charged the jury on self-defense by failing to
expressly instruct the jury that it must unanimously agree on the factual
basis for rejecting his theory of self-defense, the defendant having waived
his claim of instructional error; the record indicated that the court
provided defense counsel with a copy of its charge, which included the
self-defense and unanimity instructions that were read to the jury, and
with a meaningful opportunity to review the instructions, that the court
solicited comments from counsel before and after it read the instructions
to the jury, that defense counsel not only failed to object to the charge
but indicated his satisfaction with it, and that counsel did not file a
request to charge to alert the court to any potential issues with the
charge.
Argued February 3—officially released June 23, 2020
Procedural History
Substitute information charging the defendant with
two counts of the crime of assault in the first degree,
brought to the Superior Court in the judicial district of
Middlesex and tried to the jury before Suarez, J.; verdict
and judgment of guilty, from which the defendant
appealed to this court. Affirmed.
Norman A. Pattis, for the appellant (defendant).
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were Michael A. Gailor, state’s attor-
ney, and Eugene R. Calistro, Jr., former supervisory
assistant state’s attorney, for the appellee (state).
Opinion
FLYNN, J. The defendant, Anthony Magaraci, appeals
from the judgment of conviction, rendered following a
jury trial, of two counts of assault in the first degree
in violation of General Statutes § 53a-59 (a) (1). The
defendant claims that (1) the state adduced insufficient
evidence to support his conviction because it had failed
to disprove beyond a reasonable doubt that he acted
in self-defense, and (2) the court improperly instructed
the jury on self-defense. We conclude that the evidence
sufficed to permit the jury, as the arbiters of the credibil-
ity of witnesses, reasonably to conclude that the defen-
dant was the original aggressor and that he had stabbed
the victims even though he could have safely retreated.
We also conclude that the defendant waived any claim
of instructional error. We, therefore, affirm the judg-
ment of the trial court.
The jury reasonably could have found the following
facts. Cheryl Bell invited her longtime friend, Tina Per-
aino, who was living in Florida, to visit and stay with
her and her husband, Ryan Bell, over Memorial Day
weekend, 2017. The defendant, who lived in West Haven
and who was dating Peraino, accompanied Peraino.
After meeting Peraino at the airport, the defendant and
Peraino arrived at the Bells’ residence in the early morn-
ing of Friday, May 26, 2017. On Friday night, following
dinner, the defendant, Peraino, and Ryan Bell went to
the house of the Bells’ neighbor, Chris Abbatello, to
socialize and to drink beer. Ryan Bell introduced Per-
aino to another guest, Justin Wyatt, and the two began
conversing while the defendant was standing by Per-
aino. During the conversation, Wyatt made a deroga-
tory comment about Peraino’s job as a paralegal that
made Peraino uncomfortable. After returning to the
Bells’ residence, the defendant stated that Wyatt ‘‘needs
a crack in the mouth.’’ According to Ryan Bell, the
next day the defendant appeared ‘‘bitter’’ and ‘‘agitated’’
about that conversation that had occurred the night
before. The defendant referred to Wyatt using an insult-
ing scatological term.
On Sunday, Abbatello hosted a picnic at a state park.
Between forty and sixty people were in attendance,
including the defendant, Peraino, and Wyatt.1 Around
5:30 p.m., the defendant, Peraino, and Ryan Bell left
the picnic and went to the house of another neighbor
of the Bells, Paula Bourdon and Tim Bourdon. An after
party ensued at the Bourdons’ house, which included
socializing, drinking alcoholic beverages, and playing
horseshoes. The defendant, Peraino, Ryan Bell, and
Wyatt were drinking beer. Cheryl Bell was the only one
of the group who was not drinking alcohol.
The defendant, who was ‘‘quite upset,’’ said to Paula
Bourdon that he ‘‘could handle himself’’ and displayed
a knife that had been in his pocket. He also stated to
Paula Bourdon that ‘‘he knew Hells Angels and . . .
was not the kind of person to be messed with.’’ Around
8 p.m., Wyatt, who was holding a beer bottle in his right
hand, turned around and, upon seeing the defendant,
switched the beer bottle to his left hand and extended
his right hand. The defendant did not shake Wyatt’s
hand, yelled that Wyatt had disrespected him, and
shouted several times for Wyatt to go for a walk with
him. Wyatt yelled back ‘‘absolutely not.’’ Cheryl Bell,
who had been standing nearby, shouted to Ryan Bell,
who was playing horseshoes, to ‘‘come over.’’ Ryan Bell
then positioned himself in between the defendant and
Wyatt. The defendant became ‘‘very upset,’’ lunged at
Wyatt, and the two began ‘‘to swing at each other.’’
Ryan Bell ‘‘grabbed’’ Wyatt, ‘‘pulled him back,’’ and felt
‘‘a graze.’’ Another guest, John Surprenant, stopped play-
ing horseshoes and went over to see if he could help
stop the altercation. After the altercation, the defendant
stated, ‘‘that will teach you,’’ and placed the folding
knife in his pocket.
After a few moments, Wyatt felt a ‘‘hot coffee’’ like
sensation, and upon lifting his sweatshirt, noticed
‘‘blood gushing’’ from his abdomen. He began to have
trouble breathing. Ryan Bell also sustained a stab
wound. Tyler Peska, who was also at the Bourdons’
gathering, called 911. Both Wyatt and Ryan Bell were
transported to a hospital for treatment. Wyatt had a
four centimeter by two centimeter stab wound to his
abdomen that caused an apical pneumothorax, or air
outside the apex of his lung. He was admitted to the
hospital for monitoring and released the following day.
Ryan Bell had an eight centimeter stab wound on his
left abdomen that did not penetrate ‘‘the strength layers
of the abdomen’’ and was discharged after receiving
stitches.
Corporal Bryan Pellegrini, a member of the Clinton
Police Department and the lead investigator on the case,
responded to the scene, and he and other Clinton offi-
cers took statements from witnesses after the stab-
bings. He did not take statements from some individ-
uals because they were too intoxicated. The police
recovered the broken neck of a beer bottle approxi-
mately fifty feet from where the incident had taken
place. Forensic testing revealed that the DNA on the
mouth of the beer bottle matched Wyatt’s DNA profile.
Pellegrini went to the hospital, noticed that Wyatt was
‘‘still making sense,’’ and took Wyatt’s statement while
he was awaiting treatment. According to blood tests
taken at the hospital, Wyatt’s blood alcohol content was
0.167 percent and Ryan Bell’s blood alcohol content
was 0.07 percent.2
After the altercation, the defendant and Peraino
walked quickly toward the Bells’ house and packed their
belongings. On their way to a restaurant near Bradley
International Airport, the defendant threw the knife out
the car window. As he was leaving the restaurant, the
defendant was arrested. Police officers did not notice
any visible injuries to the defendant’s head or face, but
noticed a cut on the defendant’s finger that he could
not explain.
At trial, the defendant conceded that he had stabbed
Wyatt and Ryan Bell, but contended that he did so in
self-defense. The defendant testified to the following
version of events regarding the altercation at the Bour-
dons’ house. While he was conversing with Peraino and
Cheryl Bell, Wyatt approached him carrying an empty
beer bottle in his right hand. Wyatt switched the bottle
to his left hand and asked if he wanted to shake hands.
The defendant responded that if Wyatt apologized for
his ‘‘rude and disrespectful behavior’’ then he would
‘‘be glad’’ to shake Wyatt’s hand. Wyatt responded with
an obscenity and began ‘‘posturing’’ in a way that made
the defendant think that Wyatt was trying to ‘‘intim-
idate’’ and ‘‘terrorize’’ him with the beer bottle. He did
not walk away because he thought that Wyatt would
hit him on the head with the beer bottle if he turned
his back. He told Wyatt, ‘‘please don’t come at me with
that beer bottle, if you do, you’re gonna force me to
defend myself with what I have in my pocket.’’ Cheryl
Bell yelled at Wyatt to ‘‘leave him alone,’’ and called
out to Ryan Bell. Then, ‘‘all of a sudden,’’ Cheryl Bell
was out of the way. The defendant ‘‘waited [until Wyatt]
raised the bottle before [he] pulled the knife out of [his]
pocket. And then, when [Wyatt] lunged forward with
. . . the beer bottle, [he] went forward with the knife.’’
The beer bottle ‘‘glanced off’’ the side of his head and
Ryan Bell intercepted the path of the knife, apparently
getting cut in the process. Wyatt grabbed him around
the throat and the defendant ‘‘thrust again,’’ stabbing
Wyatt. On cross-examination, the defendant stated that
he ‘‘could have walked away,’’ but he did not.
Following a jury trial, the defendant was convicted
of two counts of assault in the first degree. The court
imposed a total effective sentence of twenty years of
incarceration, suspended after nine years, with five
years of probation. This appeal followed.
I
The defendant first claims that the state adduced
insufficient evidence to prove beyond a reasonable
doubt that he did not act in self-defense. We disagree.
The defendant preserved this claim by moving, at the
close of the state’s case, for a judgment of acquittal on
the basis of insufficient evidence. Regardless of pres-
ervation, we review insufficiency claims because ‘‘any
defendant who is found guilty on the basis of insuffi-
cient evidence has been deprived of a constitutional
right and is entitled to review whether or not the claim
was preserved at trial.’’ State v. Pommer, 110 Conn.
App. 608, 612, 955 A.2d 637, cert. denied, 289 Conn. 951,
961 A.2d 418 (2008), citing Jackson v. Virginia, 443
U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
‘‘In reviewing a sufficiency of the evidence claim, we
apply a [two part] test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the jury reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt. . . . On appeal, we do not
ask whether there is a reasonable view of the evidence
that would support a reasonable hypothesis of inno-
cence. We ask, instead, whether there is a reasonable
view of the evidence that supports the jury’s verdict
of guilty.’’ (Internal quotation marks omitted.) State v.
Merriam, 264 Conn. 617, 628–29, 835 A.2d 895 (2003).
The jury was given evidence of two conflicting ver-
sions of events. In one, the defendant first lunged at
Wyatt with a knife. In the other, the defendant was hit
over the head with a beer bottle and defended himself
with a knife from further injury. During closing argu-
ment, defense counsel conceded that the elements of
assault in the first degree were satisfied as to Wyatt
and Ryan Bell.3 The theory of the defense was that the
defendant stabbed Wyatt and Ryan Bell in self-defense.
In support of his defense, the defendant relied on his
own testimony and Peraino’s testimony that Wyatt
began the altercation by striking the defendant on the
head with a beer bottle after he declined to shake
Wyatt’s hand. He also relied on the physical evidence
of a broken neck portion of a beer bottle containing
Wyatt’s DNA that the police recovered approximately
fifty feet from the scene of the altercation.
Self-defense is a defense, but not an affirmative
defense, which means that the defendant only has a
burden of production and does not have a burden of
persuasion; once the defendant introduces sufficient
evidence to warrant presenting his claim of self-defense
to the jury, it is the state’s burden to disprove the
defense beyond a reasonable doubt. State v. Singleton,
292 Conn. 734, 747, 974 A.2d 679 (2009). Whether the
state has disproved self-defense is a question of fact
for the jury. State v. Pauling, 102 Conn. App. 556, 571–
72, 925 A.2d 1200, cert. denied, 284 Conn. 924, 933 A.2d
727 (2007).
Section 53a-19 (a) provides in relevant part that ‘‘a
person is justified in using reasonable physical force
upon another person to defend himself . . . 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.’’ Section 53a-19 (b) specifies the circumstances
under which a person has a duty to retreat and provides
in relevant part that ‘‘a person is not justified in using
deadly physical force upon another person if he or she
knows that he or she can avoid the necessity of using
such force with complete safety (1) by retreating
. . . .’’ Section 53a-19 (c) provides: ‘‘Notwithstanding
the provisions of subsection (a) of this section, a person
is not justified in using physical force when (1) with
intent to cause physical injury or death to another per-
son, he provokes the use of physical force by such other
person, or (2) he is the initial aggressor, except that
his use of physical force upon another person under
such circumstances is justifiable if he withdraws from
the encounter and effectively communicates to such
other person his intent to do so, but such other person
notwithstanding continues or threatens the use of physi-
cal force, or (3) the physical force involved was the
product of a combat by agreement not specifically
authorized by law.’’
A jury’s evaluation of a self-defense claim has both
subjective and objective elements. See State v. Hall,
213 Conn. 579, 586 n.7, 569 A.2d 534 (1990). Section
53a-19 (b) requires both that a complete safe retreat be
available and that the defendant know of it. See State
v. Quintana, 209 Conn. 34, 46, 547 A.2d 534 (1988). To
obtain a conviction, the state must sustain its burden
of disproving beyond a reasonable doubt any of the
essential elements of self-defense or sustain its burden
of proving beyond a reasonable doubt that the statutory
exceptions to self-defense codified in § 53a-19 (b) or
(c) apply. See State v. Grasso, 189 Conn. App. 186,
200, 207 A.3d 33, cert. denied, 331 Conn. 928, 207 A.3d
519 (2019).
The defendant contends that the state failed to dis-
prove that he acted in self-defense and that ‘‘the verdict
in this case is the product of speculation.’’ He argues
that no reasonable juror would have credited the testi-
mony of the five state’s witnesses whose testimony
contradicted the defendant’s version of the events of
the altercation: Wyatt, Ryan Bell, Cheryl Bell, Peska,
and Surprenant, because they had ‘‘serious credibility
issues, or simply lacked any real knowledge of the con-
frontation.’’ The defendant argues that a reasonable
juror would have questioned the veracity of these wit-
nesses for the following reasons. Wyatt was intoxicated
when he gave his statement to the police, which was
inconsistent with his trial testimony. Peska testified
that he did not remember who started the fight and the
police officers declined to take his statement because
they thought he was too intoxicated. The defendant
contends that Cheryl Bell was biased against the defen-
dant for ending her friendship with Peraino, which col-
ored her testimony, and that she did not see the alterca-
tion because her husband, Ryan Bell pulled her out of
the way before the altercation began. The defendant
notes that Cheryl Bell was the only one who testified
that she heard him say, after stabbing Wyatt, ‘‘that will
teach you.’’ The defendant states that Cheryl Bell did
not include the disputed comment in her statement
to the police. He further contends that Surprenant’s
testimony was not credible because he did not see the
fight start and the police did not take an official state-
ment because officers thought he was too intoxicated.
The defendant further argues that a reasonable juror
would have determined that the following testimony of
two of the state’s witnesses corroborated his version
of events: Surprenant’s testimony that he heard the
defendant say that Wyatt had tried to hit him with a
beer bottle, and Ryan Bell’s testimony that he did not
recall seeing anything in Wyatt’s hand at the time of
the fight but heard a bottle break on the ground as
Cheryl Bell called him over. The defendant also notes
that Ryan Bell was on Pellegrini’s list of witnesses
whose official statements were not taken by investiga-
tive police officers because those witnesses were
deemed intoxicated. He further argues that the state
failed to explain the broken beer bottle that contained
Wyatt’s DNA.
The defendant essentially argues that the state failed
to disprove self-defense because its eyewitnesses
lacked credibility. However, it is not the role of this
court to question the jury’s credibility determinations.
‘‘[I]t is well established that we may not substitute our
judgment for that of the [trier of fact] when it comes
to evaluating the credibility of a witness. . . . It is the
exclusive province of the trier of fact to weigh conflict-
ing testimony and make determinations of credibility,
crediting some, all or none of any given witness’ testi-
mony. . . . Questions of whether to believe or disbe-
lieve a competent witness are beyond our review. As
a reviewing court, we may not retry the case or pass
on the credibility of witnesses.’’4 (Internal quotation
marks omitted.) State v. DeMarco, 311 Conn. 510, 519–
20, 88 A.3d 491 (2014). Therefore, it was within the
province of the jury to assess the credibility of the
state’s eyewitnesses, and the jury was not obligated to
discredit the testimony of the witnesses whose credibil-
ity was called into question. See State v. Owens, 63
Conn. App. 245, 250, 775 A.2d 325, cert, denied, 256
Conn. 933, 776 A.2d 1151 (2001).
With these principles in mind, we conclude that the
state produced sufficient evidence to disprove the
defendant’s theory of self-defense beyond a reasonable
doubt. There was evidence, which the jury reasonably
could have credited, that the defendant was the initial
aggressor who lunged at and stabbed Wyatt and, in the
process, stabbed Ryan Bell. Wyatt testified that he did
not threaten the defendant with a beer bottle and that
the defendant was the one who ‘‘came at’’ him. Cheryl
Bell testified that the defendant threw the first punch.
Ryan Bell testified that, after Cheryl Bell called him
over, he saw a scuffle and pulled Wyatt back as the
defendant was lunging at Wyatt. The defendant testified
that, after the altercation, he discarded the knife. Addi-
tionally, the fact that the police did not take official
statements from certain witnesses because the police
officers thought they were too intoxicated, does not
obligate the jury to abandon its role as the sole arbiter
of the credibility of these witnesses and automatically
discount their testimony. Rather, it is the unique role
of the jury to weigh conflicting evidence, to determine
the credibility of witnesses, and to decide whether to
accept or reject, in whole or in part, the testimony of
a witness. See, e.g., State v. Terry, 161 Conn. App. 797,
800 n.2, 128 A.3d 958 (2015), cert. denied, 320 Conn. 916,
131 A.3d 751 (2016). Although some witnesses reported
hearing a bottle crash as the altercation began, the
broken beer bottle containing Wyatt’s DNA was found
fifty feet from the scene of the altercation. To the extent
that such evidence can be seen as supporting the defen-
dant’s theory, evidence is not insufficient because it is
inconsistent or conflicting. See State v. Vega, 128 Conn.
App. 20, 27, 17 A.3d 1060, cert. denied, 301 Conn. 919,
21 A.3d 463 (2011). The existence of evidence which,
under one interpretation, could be viewed as supporting
the defendant’s version of events does not obligate the
jury to interpret it in that light. See, e.g., State v. Terry,
supra, 800 n.2. The jury was free to disbelieve the defen-
dant’s version of events that Wyatt was about to inflict
great bodily harm on him by hitting him on the head
with a beer bottle and that he ‘‘went forward’’ with a
knife after Wyatt lunged at him with a beer bottle. The
jury also was free to disbelieve the portion of the defen-
dant’s testimony that he had asked Wyatt not to attack
him with the beer bottle, otherwise he would have to
defend himself with a knife. Additionally, even if the
jury credited the defendant’s version of events, the jury
reasonably could have determined that the state carried
its burden of proving beyond a reasonable doubt that
the defendant used deadly force against Wyatt despite
the fact that he had actual knowledge of his ability to
retreat safely. The defendant admitted on cross-exami-
nation that he ‘‘could have walked away.’’
For the foregoing reasons, we conclude that the
defendant cannot prevail on his insufficiency claim.
II
The defendant next claims that he was deprived of his
right, under article first, §§ 8 and 19, of the Connecticut
constitution, to a unanimous verdict when the court
improperly charged the jury on self-defense by failing
to expressly instruct the jury that it must unanimously
agree on the factual basis for rejecting the defendant’s
theory of self-defense. The state responds that the
defendant implicitly waived this claim. We agree with
the state and, accordingly, do not reach the merits of
this claim.
The state filed a request to charge on March 20, 2018.
Defense counsel did not file a request to charge. On
March 21, 2018, the court stated that it had incorporated
comments from both counsel into its jury charge and
had a draft ready for counsel to review overnight. The
draft charge included the self-defense and unanimity
instructions that were later read to the jury the follow-
ing day.5 On March 22, 2018, the court noted on the
record that it had held an in-chambers charge confer-
ence that morning and had accepted all of the sugges-
tions made by the state and the defendant. The court
stated it would detail the changes for the record if either
counsel so requested. The state responded that it was
satisfied and that it was not necessary to go through
the changes. Defense counsel responded, ‘‘I’m very
satisfied. Thank you. I think it’s an excellent charge.’’
The court inquired if both counsel had an opportunity
to review the charge, and defense counsel answered
affirmatively. After the court read its final charge to
the jury, outside the presence of the jury, the court
asked defense counsel if he had any objection. Defense
counsel responded, ‘‘I have nothing. I thought it was
good.’’
We exercise plenary review when determining
whether a defendant waived the right to challenge a
jury instruction. See State v. Mungroo, 299 Conn. 667,
672–73, 11 A.3d 132 (2011). ‘‘Connecticut courts have
deemed a claim of instructional error implicitly waived
when the defense failed to take exception to, and acqui-
esced in, the jury instructions following one or more
opportunities to review them. . . . [W]hen the trial
court provides counsel with a copy of the proposed
jury instructions, allows a meaningful opportunity for
their review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively
accepts the instructions proposed or given, the defen-
dant may be deemed to have knowledge of any potential
flaws therein and to have waived implicitly the constitu-
tional right to challenge the instructions on direct
appeal.’’ (Citations omitted.) State v. Kitchens, 299
Conn. 447, 480–83, 10 A.3d 942 (2011).
The circumstances of the present case are similar to
those in State v. Davis, 163 Conn. App. 458, 136 A.3d
257 (2016). In that case, this court determined that the
doctrine of implied waiver precluded substantive
review of the defendant’s claim of instructional impro-
priety where the court provided counsel with a copy
of the proposed instructions the day before the charge
conference, the parties indicated during the conference
that they had reviewed the proposed instructions,
defense counsel indicated one change to the instruc-
tions and otherwise stated that the instructions were
‘‘ ‘fair to both parties,’ ’’ and defense counsel voiced no
objection to the instruction at issue. Id., 478–79.
Following our careful review of the record, we con-
clude that the defendant implicitly waived this instruc-
tional claim. The record reflects that, at least one day
before it instructed the jury, the court provided coun-
sel with copies of its charge, which included the self-
defense and unanimity instructions that were read to
the jury. Under these circumstances, defense counsel
had a meaningful opportunity to review the instruc-
tions. See id. The court solicited comments from coun-
sel before and after it read the instructions to the jury.
Defense counsel not only failed to object, but he also
indicated that he was ‘‘very satisfied’’ with the court’s
‘‘excellent charge.’’ Defense counsel did not file any
request to charge with the court alerting it to any claim
regarding the jury instructions of the kind now raised
on appeal. Because defense counsel implicitly waived
this claim of instructional impropriety, we do not review
the merits of this claim.6
The judgment is affirmed.
In this opinion the other judges concurred.
1
Wyatt testified that he had no contact with the defendant or Peraino at
the picnic other than briefly introducing them to a friend. Peraino testified
that Wyatt told her that she would have more fun if she were with him
instead of the defendant. Peraino testified that both she and the defendant
thought that comment was disrespectful. Other guests testified that they did
not see any interaction between Wyatt and either Peraino or the defendant.
2
General Statutes § 14-227a (a) (2) provides in part that a person commits
the offense of operating a motor vehicle while under the influence of intox-
icating liquor if that person operates a motor vehicle while having a blood
alcohol content of 0.08 percent or more.
3
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when . . . (1) With intent to cause
serious physical injury to another person, he causes such injury to such
person or to a third person by means of a deadly weapon or a dangerous
instrument . . . .’’
4
Witness competency is within the discretion of the trial court. See State
v. Webb, 75 Conn. App. 447, 462–63, 817 A.2d 122, cert. denied, 263 Conn.
919, 822 A.2d 244 (2003). The testimony at issue was admitted into evidence,
and there is no dispute regarding the competency of these witnesses.
5
The court charged the jury on the elements and exceptions to self-
defense and further charged: ‘‘You must remember that a defendant has no
burden of proof whatsoever with respect to the defense of self-defense.
Instead, it is the state that must prove beyond a reasonable doubt that the
defendant did not act in self-defense if it is to prevail on its charge of crime
of assault in the first degree. To meet this burden, the state need not disprove
all four of the elements of self-defense. Instead, it can defeat the defense
of self-defense by disproving any one of the four elements of self-defense
beyond a reasonable doubt to your unanimous satisfaction.’’
6
The defendant contends that his claim is of constitutional magnitude
because it implicates the constitutional right to a unanimous verdict and
otherwise satisfies the requirements of State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781,120 A.3d 1188 (2015). Because the defendant implicitly waived his
instructional claim, he cannot obtain relief under Golding. See State v.
Ramon A. G., 190 Conn. App. 483, 503 n.13, 211 A.3d 82, cert. granted on
other grounds, 333 Conn. 909, 215 A.3d 735 (2019). ‘‘A constitutional claim
that has been waived does not satisfy [Golding’s] third prong . . . because,
in such circumstances, we simply cannot conclude that injustice [has been]
done to either party . . . or that the alleged constitutional violation . . .
exists and . . . deprived the defendant of a fair trial . . . .’’ (Internal quota-
tion marks omitted.) State v. Kitchens, supra, 299 Conn. 467.