State v. Grajales

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STATE OF CONNECTICUT v. LUIS A. GRAJALES
(AC 39140)
Lavine, Keller and Pellegrino, Js.
Syllabus
Convicted of the crimes of assault in the first degree and carrying a pistol
without a permit, the defendant appealed to this court. The defendant’s
conviction stemmed from his conduct in shooting the victim in the neck
during the course of a physical altercation between members of the
defendant’s family and the victim’s family at the victim’s apartment
complex. After the shooting, the defendant fled the scene of the crime,
returned to his apartment, and claimed that he fell asleep. Despite the
police searching the area of the defendant’s apartment that night, the
defendant remained hidden until the police searched his apartment the
next day, at which time he was discovered and subsequently arrested.
At trial, the defendant’s theory of defense was one of justification in
defense of others, in which he claimed that he shot the victim to protect
his wife and daughter. On appeal, the defendant claimed that the court
improperly instructed the jury on consciousness of guilt because the
evidence did not reasonably support a finding of flight. Held that the
defendant’s claim that the prejudicial effect of the instruction on flight
outweighed its probative value and affected the jury’s consideration of
his claim of defense of others was unavailing: although the defendant
claimed that leaving the scene of a crime in an open or otherwise
nonfurtive manner does not support a consciousness of guilt instruction
on the basis of flight, the fact that the evidence might support an innocent
explanation does not make an instruction on flight erroneous, there was
no binding precedent that holds that returning home after an alleged
crime precludes a court from instructing a jury on consciousness of
guilt on the basis of flight, the evidence in the present case that the
defendant left the scene of the shooting rather than waiting for the
arrival of authorities supported a reasonable inference that he knew his
actions were wrong in the eyes of the law and that he was hiding out
in order to evade being apprehended by police, and the fact that he
returned to his nearby basement apartment did not preclude that infer-
ence; moreover, the inference that flight reflected consciousness of guilt
was enhanced by the evidence of what the defendant did between the
time he got home and the time of his arrest, as this court, in determining
whether the flight instruction was warranted, was permitted to review
not only the evidence that the defendant left the scene of the shooting
but also his furtive conduct at his apartment, the trial court did not act
improperly by instructing the jury that the defendant’s flight may have
indicated a consciousness of guilt, and the jurors were free either to
reject or to accept the evidence, and were not required to find that the
defendant fled because he was guilty.
Argued November 27, 2017—officially released May 1, 2018
Procedural History
Substitute information charging the defendant with
one count each of the crimes of assault in the first
degree and carrying a pistol without a permit, and with
three counts of the crime of risk of injury to a child,
brought to the Superior Court in the judicial district of
New Haven and tried to the jury before the court, B.
Fischer, J.; verdict and judgment of guilty of assault in
the first degree and carrying a pistol without a permit,
from which the defendant appealed to this court.
Affirmed.
Daniel J. Krisch, assigned counsel, for the appel-
lant (defendant).
Kathryn W. Bare, assistant state’s attorney, with
whom, on the brief, were Patrick J. Griffin, state’s
attorney, Brian K. Sibley, Sr., senior assistant state’s
attorney, and Karen A. Roberg, assistant state’s attor-
ney, for the appellee (state).
Opinion
KELLER, J. The defendant, Luis A. Grajales, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of assault in the first degree in viola-
tion of General Statutes § 53a-59 (a) (5)1 and one count
of carrying a pistol without a permit in violation of
General Statutes § 29-35.2 He claims that the court
improperly instructed the jury on consciousness of guilt
because the evidence does not reasonably support a
finding of flight. We affirm the judgment of the trial
court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
On August 22, 2014, Luis Perez (Perez) returned home
from work to his apartment at Station Court in New
Haven around 5 p.m. Perez lived with his wife, Jessica
Rivera, and their four children—Chrystal Perez, Shela-
nie Perez, K, and L. On the evening of the incident,
Perez and Rivera were joined by Grenda Camacho, a
family friend, and her son, I.3 Together, they ate dinner
and sat outside their first floor apartment and watched
their children play. Meanwhile, Chrystal studied inside
the family apartment.
At the time of the incident, the defendant lived less
than one mile away from Station Court at an apartment
on Wilson Street. The defendant’s former wife, Iris
Figueroa, resided at Station Court in a second story
apartment above the Perez residence. On August 22,
2014, the defendant went to Station Court to visit his
children. Late in the evening hours of August 22, Perez
began to argue with the defendant and his family. When
the argument initially began, Perez stood outside his
apartment in the courtyard and the defendant and his
family were on the balcony of Figueroa’s apartment
overlooking the courtyard. At some point, Perez
retrieved a ceramic ball from his apartment, which he
threw toward the defendant. The ball did not make
contact with anyone and landed harmlessly on the bal-
cony. The defendant’s daughter, Shakira Grajales, threw
the ball back at Perez, but also did not hit anyone with
it. The defendant came down from the balcony to the
courtyard and the argument between the defendant and
Perez intensified. K interrupted Chrystal from her stud-
ies to inform her that their father was outside arguing
with the defendant and his family. Chrystal grabbed
two baseball bats and placed them inside by the door
in case any member of her family needed them for
protection. She then went outside to the courtyard
where she was approached by Shakira. Chrystal, fearing
that Shakira intended to attack her, punched Shakira
in the face. The two girls began fighting in the courtyard.
Rivera attempted to break up the fight. When Rivera
attempted to do so, Figueroa pulled Rivera to the
ground by her hair and began hitting her.
The defendant and Perez were not involved in the
physical fight in the courtyard. As the melee in the
courtyard continued, the defendant went upstairs to
Figueroa’s apartment and retrieved a .22 caliber pistol.
The defendant came back downstairs with the gun hid-
den behind his back. Camacho pleaded with the defen-
dant not to shoot Perez because ‘‘the children were
inside the [Perez] apartment.’’ The defendant ignored
her plea and entered the Perez residence. Inside, the
defendant shot Perez in the neck.
Camacho ran outside screaming that the defendant
had shot Perez. Chrystal entered the apartment and
found her father on the floor covered in blood, strug-
gling to stand up. K called 911 and handed the phone
to Chrystal, who received instructions from the opera-
tor to apply pressure to the wound using a towel, which
she did until paramedics arrived. After neighbors broke
up the fight between Figueroa and Rivera, Rivera
entered the apartment and found Perez lying on the
floor. At this point, Rivera broke a glass bottle and
grabbed one of the baseball bats that Chrystal had
placed behind the door in order to protect her family
from the defendant and his family.
After shooting Perez, the defendant left the scene at
Station Court in Figueroa’s Dodge Magnum. On the
drive back to his Wilson Street apartment, the defendant
got ‘‘scared,’’ and removed the ammunition clip from
the gun. Back at his apartment, the defendant locked
himself in a basement bedroom, placed his gun in a
bedside dresser, and went to sleep.
The gunshot fractured Perez’ C7 vertebrae. He likely
will never walk again.
The state charged the defendant with one count of
assault in the first degree, one count of carrying a pistol
without a permit, and three counts of risk of injury to
a child in violation of General Statutes § 53-21.4 At trial,
the defendant’s theory of defense was one of justifica-
tion in defense of others, claiming that he shot Perez
in order to protect Rivera and Shakira. The jury found
the defendant guilty of assault in the first degree and
possession of a pistol without a permit. The jury
returned a verdict of not guilty on the three counts
of risk of injury to a child. The court sentenced the
defendant to a total effective sentence of twenty-five
years incarceration, execution suspended after twenty-
three years, followed by five years of probation.5 This
appeal followed. Additional facts will be set forth in
our analysis of the defendant’s claim.
The defendant’s sole claim is that the court improp-
erly instructed the jury on consciousness of guilt
because the evidence does not reasonably support a
finding of flight.
The record reflects that on October 13, 2015, the
after, the court stated on the record: ‘‘I just want to
review with counsel on the record. . . . We met in my
chambers today, [October 13, 2015,] around 9 [a.m.]
and we had a charge conference in chambers. . . . On
Thursday, [October 8, 2015,] I had sent to counsel a
proposed jury charge. They received another . . .
installment correcting some of the original rough drafts
on Friday, [October 9, 2015]. This weekend was Colum-
bus Day weekend. I encouraged counsel to review the
proposed charge, spend time on it, and give the court
any suggestion, or recommendations, or request to
charge. Both counsel have taken the court up on that
and over the weekend I did receive first from—[defense
counsel] two comments . . . . I will do that. . . .
From the state’s standpoint as I understand it, the state
is requesting a consciousness of guilt charge specifically
concerning an evidentiary issue of flight from the scene.
Is that correct, [prosecutor]?
‘‘[The Prosecutor:] Yes, Judge.
‘‘The Court: And, [defense counsel], as I understand
it you object to that charge?
‘‘[Defense counsel:] I do, your Honor . . . [the defen-
dant’s] response . . . is a natural response to some-
body in that particular situation. I don’t think it rises
to the level of consciousness of guilt. . . . ’’
The court noted the defendant’s exception. During
closing argument neither party offered arguments con-
cerning the defendant’s flight or consciousness of guilt.
The court, during its jury charge, instructed the jury as
follows: ‘‘I want to talk to you about consciousness of
guilt. In any criminal trial it is permissible for the state
to show that conduct or statements made by a defen-
dant after the time of the alleged offense may have been
influenced by the criminal act, that is, the conduct or
statements show a consciousness of guilt. For example,
flight, when unexplained, may indicate consciousness
of guilt if the facts and the circumstances support it.
Such facts do not, however, raise a presumption of
guilt. If you find the evidence proved and also find that
the acts were influenced by the criminal act and not
by any other reason you may, but are not required to
infer from this evidence, that the defendant was acting
from a guilty conscience.
‘‘The state claims that the following conduct is evi-
dence of consciousness of guilt. The defendant’s flight
from . . . Station Court, New Haven, on August [22],
2014. It is up to you as judges of the facts to decide
whether the defendant’s acts if proved reflect a con-
sciousness of guilt, and to consider such in your deliber-
ations and conform with these instructions.’’6
The following evidence pertaining to flight was intro-
duced at trial. The state introduced a videotape of
Detective Gary Hammill interviewing the defendant on
the morning after the shooting. During this interview,
the defendant stated that, after he shot Perez, he left
Station Court in Figueroa’s car, a white Dodge Magnum.
The defendant said he travelled to his Wilson Street
apartment, parked the car there, and immediately went
inside to go to sleep. He said he heard the police search-
ing at Wilson Street that night, but he did not reveal
himself to the police and they did not find him in the
basement. He stated that although the police entered
the basement, they did not find him because they did
not enter the room behind the green door. He also heard
Figueroa’s car being towed from the driveway. During
the interview, the defendant repeatedly asserted that
his actions after leaving Station Court were because he
was afraid.
Police officers testified that when they arrived at
Station Court on the night of the incident, the defendant
was no longer present. Officer Eric Pesino testified that
he went to Station Court because of a report of shots
fired. Upon arriving at a chaotic scene, he learned that
the defendant ‘‘took off’’ after shooting Perez. Detective
Ann Mays testified that police officers, shortly after
arriving at Station Court on the night of the incident,
learned that the defendant may be at his Wilson Street
apartment. Mays and other officers went to the Wilson
Street apartment but could not find the defendant. Mays
testified that the police communicated with someone
in the basement apartment and ordered that everyone
exit the house. The police requested identification from
the people who came outside. Sergeant Colon stated
that police searched the house, including the basement.
The police did not find the defendant among the people
they identified or inside the house. Mays also testified
that she spotted ‘‘a cream colored Dodge Magnum’’
parked in the driveway at the Wilson Street apartment
and that the hood of this car was warm.
Detective Juan Ingles testified about finding the
defendant at the Wilson Street apartment the morning
after the shooting. Ingles received a key to the home
from the defendant’s brother-in-law. Ingles and another
officer entered the basement of the house and found
a locked door. The officers banged on the door and
identified themselves as members of the New Haven
police department. The officers were told to enter and
used the key to unlock the door. The officers cautiously
entered the basement apartment with their weapons
drawn because they suspected the defendant still had
a gun. Inside, the police found the defendant lying down
on a bed.
‘‘We review a trial court’s decision to give a con-
sciousness of guilt instruction under an abuse of discre-
tion standard. . . . Evidence that an accused has taken
some kind of evasive action to avoid detection for a
crime, such as flight, concealment of evidence, or a
false statement, is ordinarily the basis for a [jury] charge
on the inference of consciousness of guilt.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Vasquez, 133 Conn. App. 785, 800, 36 A.3d 739, cert.
denied, 304 Conn. 921, 41 A.3d 661 (2012). ‘‘The decision
whether to give an instruction on flight . . . should be
left to the sound discretion of the trial court.’’ State v.
Hines, 243 Conn. 796, 816, 709 A.2d 522 (1998).
‘‘Flight, when unexplained, tends to prove a con-
sciousness of guilt. . . . Flight is a form of circumstan-
tial evidence. . . . The probative value of evidence of
flight depends upon all the facts and circumstances and
is a question of fact for the jury.’’ (Citations omitted.)
State v. Thomas, 50 Conn. App. 369, 382–83, 717 A.2d
828 (1998), appeal dismissed, 253 Conn. 541, 755 A.2d
179 (2000).
‘‘[E]vidence of flight from the scene of a crime [is]
inherently ambiguous. . . . That ambiguity does not
render a flight instruction improper.’’ (Citations omit-
ted.) State v. Luster, 279 Conn. 414, 423, 902 A.2d 636
(2006). ‘‘If there is a reasonable view of the evidence
that would support an inference that [the defendant
fled] because he was guilty of the crime and wanted to
evade apprehension—even for a short period of time—
then the trial court is within its discretion in giving . . .
[a flight] instruction . . . .’’ State v. Scott, 270 Conn.
92, 105–106, 851 A.2d 291 (2004), cert. denied, 544 U.S.
987, 125 S. Ct. 1861, 161 L. Ed. 2d 746 (2005). ‘‘Generally
speaking, all that is required is that the evidence have
relevance, and the fact that ambiguities or explanations
may exist which tend to rebut an inference of guilt does
not render evidence of flight inadmissible but simply
constitutes a factor for the jury’s consideration.’’ State
v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert.
denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194
(1979).
‘‘The probative value of flight as evidence of a defen-
dant’s guilt depends on the degree of confidence with
which four inferences can be drawn: (1) from behavior
to flight; (2) from flight to consciousness of guilt; (3)
from consciousness of guilt to consciousness of guilt
concerning the crime charged; and (4) from conscious-
ness of guilt concerning the crime charged to actual
guilt of the crime charged.’’ (Internal quotation marks
omitted.) State v. Holley, 90 Conn. App. 350, 361–62,
877 A.2d 872, cert. denied, 275 Conn. 929, 883 A.2d
1249 (2005).
In the present appeal, the defendant argues that the
first inference—from behavior to flight—is not sup-
ported by the evidence and, thus, the court should not
have provided the jury with the consciousness of guilt
instruction. The state, in response, argues that the evi-
dence is sufficient to support the consciousness of guilt
instruction. We agree with the state.
The defendant argues that ‘‘flight means more than
merely leaving the scene of a crime; it presupposes a
nefarious motive for leaving,’’ or in other words, mere
departure from the scene of a crime is insufficient evi-
dence to support a jury instruction on consciousness
of guilt on the basis of flight.7 No Connecticut appellate
case, however, has held that flight requires proof of
more than departure from the scene of the crime or a
nefarious purpose for leaving. To the contrary, our case
law addressing whether there is sufficient evidence to
support a consciousness of guilt instruction on the basis
of flight upholds the proposition that the instruction is
warranted even when the evidence reveals little more
than mere departure.8 State v. Asberry, 81 Conn. App.
44, 57, 837 A.2d 885 (evidence defendant left scene of
crime because he expected someone to drive him home
and victim saw defendant leave scene in tan colored
car that was later stopped sufficient to support flight
instruction), cert. denied, 268 Conn. 904, 845 A.2d 408
(2004); see also State v. Adams, 36 Conn. App. 473, 481,
651 A.2d 747 (evidence defendant got into his car and
left scene and police officer saw defendant driving rap-
idly away from scene sufficient to support flight instruc-
tion), appeal dismissed, 235 Conn. 473, 667 A.2d 796
(1995).
We are not persuaded by the defendant’s assertion
that evidence of leaving the scene of a crime in an open,
or otherwise nonfurtive, manner does not support a
consciousness of guilt instruction on the basis of flight.
Although the paradigm examples of flight expressing
consciousness of guilt may involve fleeing the country
or a complex ruse to avoid law enforcement, there is
no requirement that a defendant’s departure from the
scene of a crime involve such a circumstance. See State
v. Asberry, supra, 81 Conn. App. 57. Our case law repeat-
edly acknowledges that ‘‘evidence of flight from the
scene of a crime inherently is ambiguous’’; State v.
Luster, supra, 279 Conn. 423; and ‘‘[t]he fact that the
evidence might support an innocent explanation . . .
does not make an instruction on flight erroneous.’’
(Internal quotation marks omitted.) State v. Silva, 113
Conn. App. 488, 496–97, 966 A.2d 798 (2009).
We now address the defendant’s argument that the
‘‘mere return to familiar environs from the scene of an
alleged crime does not warrant an inference of con-
sciousness of guilt.’’ The defendant supports this con-
tention by referring to the evidence that after the
shooting he went to his own home, which was less than
one mile away from Station Court, and went to sleep.
We first observe that no binding precedent holds that
returning home after an alleged crime precludes a court
from instructing a jury on consciousness of guilt on the
basis of flight. Instead, prior cases have affirmed that
an instruction on flight is proper when the defendant
returns to his place of residence. State v. Wright, 198
Conn. 273, 281, 502 A.2d 911 (1986); State v. Thomas,
supra, 50 Conn. App. 383–84.
In Wright, the defendant and the victim got into an
argument over a drug transaction. State v. Wright,
supra, 198 Conn. 276. According to the defendant in
Wright, the victim threatened him with a knife. Id. In
response, the defendant, acting in self-defense, wrestled
the victim to the ground. Id. The victim was stabbed
twice in the chest during the ensuing struggle. Id. There
was evidence that the defendant in Wright, after stab-
bing the victim, ‘‘ran to his mother’s house, where he
was living at the time, changed his clothes and wiped
up blood. He then went to his sister-in-law’s apartment,
where he was apprehended by the police the next day.’’
Id., 281. On the basis of this evidence, ‘‘[t]he jury could
have found that this conduct constituted evidence of
flight which tended to show a consciousness of
guilt.’’ Id.
The evidence also supported an instruction of flight
in a case in which the defendant, after stabbing some-
one, rode his bicycle to his mother’s house, where he
resided. State v. Thomas, supra, 50 Conn. App. 383–84.
In Thomas, the defendant spotted the victim toting a
boom box that the defendant suspected the victim had
stolen from him. Id., 371. The defendant confronted the
victim about the boom box and the two began to fight.
Id. During the altercation, the defendant stabbed the
victim in the chest. Id. ‘‘[I]mmediately after the victim
had been stabbed, the defendant rode a bicycle to his
mother’s house.’’ Id., 383. This court concluded that
‘‘[t]he evidence of flight in this case tended to show
that the defendant believed that what he had done was
not merely an act of self-defense, but was something
that was considered wrong in the eyes of the law. . . .
[T]he evidence of flight was sufficient to allow the jury
to infer consciousness of guilt . . . .’’ Id., 384.
Wright and Thomas both held that there was suffi-
cient evidence to support a consciousness of guilt
instruction on the basis of flight when each defendant
returned to his place of residence. We do not see a
reason to distinguish the defendant in the present case
departing Station Court for the apartment where he
had been residing from the defendants in Wright and
Thomas fleeing to their mothers’ homes where they had
been residing. In light of the particular circumstances,
evidence of returning home after committing an act of
violence can still evince that a ‘‘defendant believed that
what he had done was not merely an act of self-defense,
but was something that was considered wrong in the
eyes of the law.’’ Id., 384. At trial, the defendant relied
on the theory that he shot Perez in defense of others.
The evidence that the defendant left the scene of the
shooting rather than waiting for the arrival of authori-
ties supported a reasonable inference that the defen-
dant knew his actions were wrong. The fact that there
was evidence that he returned to his nearby basement
apartment does not preclude this inference.
Furthermore, we are not persuaded by the defen-
dant’s argument that our review of whether the evi-
dence supports the flight instruction should be limited
to the fact that the defendant left Station Court and
went to his Wilson Street apartment after the shooting.
The defendant contends that because the court
instructed the jury to consider the defendant’s ‘‘flight
from . . . Station Court,’’ and did not delve into the
evidence of his conduct at his Wilson Street apartment,
the evidence in support of the court’s decision to give
the flight instruction is limited merely to the fact that
the defendant departed from the scene. ‘‘The probative
value of evidence of flight [however] depends upon all
the facts and circumstances and is a question of fact
for the jury.’’ State v. Nemeth, 182 Conn. 403, 408, 438
A.2d 120 (1980). The defendant’s departure from the
scene and his actions immediately following the shoot-
ing support a conclusion that when the defendant left
the scene and went home, he was not simply waiting
for things to calm down before going to the police, as
he claimed. Rather, he was hiding out in order to evade
apprehension because he knew he had not been justi-
fied in shooting Perez to protect his family but had
done something wrong in the eyes of the law.
Therefore, we conclude that our analysis as to
whether the flight instruction was warranted permits
us to review not only the evidence that the defendant
left Station Court, but also his furtive conduct at his
apartment on Wilson Street in the early hours of August
23, 2014. Specifically, there was evidence that the defen-
dant removed the ammunition clip from his gun and
hid it in his bedside dresser. He knew the police arrived
at his Wilson Street apartment searching for him and
towed Figueroa’s car from the parking lot. Yet, the
defendant stated that he opted to remain hidden in the
basement apartment out of fear. Thus, contrary to the
defendant’s assertion, there is evidence that the defen-
dant fled Station Court in a ‘‘furtive’’ manner because
he hid from the police while they searched for him
on the night of the shooting. The inference that flight
reflected consciousness of guilt is enhanced by the evi-
dence of what the defendant did between the time he
got home and the time of his arrest.
The standard for whether a flight instruction is appro-
priate is whether there is a reasonable, and not a com-
pelling, view of the evidence that supports it. In the
present case, the court did not act improperly by
instructing the jury that the defendant’s flight from Sta-
tion Court may indicate consciousness of guilt. The
evidence was sufficient to support a finding that,
despite claiming that he acted to protect his family,
the defendant fled from the scene of the crime after
shooting Perez inside of his apartment while their fami-
lies argued outside and despite the fact that Shakira
and Figueroa were injured. There is no evidence that
the defendant paused before fleeing to ensure that his
family was all right or inquired about their well-being
later that night. Instead, the defendant drove off and
locked himself in his basement apartment. When police
arrived at his apartment on Wilson Street around 1 a.m.,
he was aware of their presence, but he elected to remain
hidden and was not found until the next morning. That
morning, he did not respond when the police banged
on the door and was not apprehended until the police
obtained the keys to his basement apartment from his
brother-in-law. This narrative reasonably supports the
court’s decision to provide the jury with consciousness
of guilt instruction on the basis of flight. The evidence
of flight in this case was sufficient to show that the
defendant believed what he had done was not merely
done to protect Shakira and Rivera as he claimed, but
something that was considered wrong in the eyes of
the law. The evidence of flight permitted the jury to
infer a consciousness of guilt on behalf of the defendant.
See State v. Thomas, supra, 50 Conn. App. 384.
In considering the evidence, the jurors were free to
either reject it or to accept it as they saw fit. They were
not required to find that the defendant fled because he
was guilty. See id., 384. Accordingly, we find no merit
to the defendant’s assertion that the prejudicial effect
of the instruction on flight outweighed its probative
value and affected the jury’s consideration of the defen-
dant’s claim of defense of others.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when . . . (5) with intent to cause
physical injury to another person, he causes such injury to such person or
to a third person by means of the discharge of a firearm. . . .’’
2
General Statutes § 29-35 (a) provides in relevant part: ‘‘No person shall
carry any pistol or revolver upon his or her person, except when such person
is within the dwelling house or place of business of such person, without
a permit to carry the same issued as provided in section 29-28. . . .’’
3
K, L, and I were the alleged minor victims in three charges of risk of
injury to a child brought against the defendant in connection with this
incident. In accordance with our policy of protecting the privacy interests
of the victims of the crime of risk of injury to a child, we decline to identify
the victims or others through whom the victims’ identifies may be ascer-
tained. See General Statutes § 54-86e.
4
General Statutes § 53-21 (a) provides in relevant part: ‘‘Any person who
(1) wilfully or unlawfully causes or permits any child under the age of
sixteen years to be placed in such a situation that the life or limb of such
child is endangered, the health of such child is likely to be injured or the
morals of such child are likely to be impaired, or does any act likely to
impair the health or morals of any such child . . . shall be guilty of (A) a
class C felony for a violation of subdivision (1) . . . of this subsection
. . . .’’
5
The court sentenced the defendant to twenty years incarceration, execu-
tion suspended after eighteen years, followed by five years of probation on
the assault conviction and five years of incarceration on the carrying a pistol
without a permit conviction, to be served consecutively to the assault
sentence.
6
The defendant is not challenging the contents of the instruction, only
the decision to give it.
7
The defendant refers to this principle that mere departure from the
scene of a crime is insufficient evidence to support a jury instruction on
consciousness of guilt on the basis of flight as the ‘‘mere departure rule.’’
8
The defendant derives the so-called ‘‘mere departure rule’’ from case
law from other jurisdictions. The authority on which the defendant relies,
however, does not convince us to follow the ‘‘mere departure rule’’ because
it is not the law in this state. See State v. Asberry, 81 Conn. App. 44, 57,
837 A.2d 885, cert. denied, 268 Conn. 904, 845 A.2d 408 (2004). In addition,
out of state authority does not provide a persuasive basis to conclude that
the trial court erred by providing a flight instruction. The two out of state
cases on which the defendant relies conclude that there was insufficient
evidence to support a consciousness of guilt instruction on the basis of
flight, are factually dissimilar from the present case, and are, thus, unpersua-
sive. See Hoerauf v. State, 941 A.2d 1161, 1180 (Md. App. 2008) and State
v. Ingram, 951 A.2d 1000, 1015 (N.J. 2008).
In Hoerauf, the defendant ‘‘simply walked away from the scene of the
crime with the group of individuals who had just perpetrated the robberies.
When [the defendant] left the scene, the police had not arrived, nor was
their arrival imminent. There was no evidence that [the defendant] attempted
to flee the neighborhood or to secrete himself from public view to avoid
apprehension. Indeed, only 10–15 minutes after the crime, the police stopped
[the defendant] in a nearby neighborhood with three of the other perpetra-
tors, one of whom possessed some of the stolen property. . . . Accordingly,
[the defendant’s] behavior did not constitute flight, and the trial court erred
in giving the flight instruction.’’ Hoerauf v. State, supra, 1180. The factual
situation in Hoerauf differs significantly from the evidence in the present
case. There is evidence in the present case that the defendant was not
apprehended for over eight hours after shooting the victim, the defendant
left the neighborhood of the crime, and the defendant hid from police.
In Ingram, a consciousness of guilt instruction was also deemed improper.
The defendant’s flight, however, occurred after his trial began. On appeal,
the New Jersey Appellate Court noted that a defendant leaving during the
middle of a trial differs from leaving after the commission of an alleged
crime for the purpose of determining whether there is sufficient evidence
for a flight instruction: ‘‘The logically required tipping point—departure to
avoid detection or apprehension—is absent here: by the time defendant
voluntarily absented himself from any portion of the trial, he already had
been arrested, indicted, admitted to bail, arraigned, had attended pre-trial
hearings, and had attended at least one court-scheduled conference. Thus,
from a purely definitional basis, a flight charge should not lie when a defen-
dant absents himself from trial unless separate proofs are tendered to sustain
the claim that the defendant’s absence was designed to avoid detection,
arrest, or the imposition of punishment.’’ State v. Ingram, supra, 951
A.2d 1015.