State v. Avila

534 A.2d 913, 13 Conn. App. 120, 1987 Conn. App. LEXIS 1156

• Court: Connecticut Appellate Court
• Decided: December 29, 1987
• Docket: 5435
• Status: Published

Opinion

Per Curiam.

The defendant has appealed from the judgment of conviction, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). His sole claim on appeal is that the trial court erred by refusing to instruct the jury that the victim had made certain statements to the defendant which allegedly implicated the victim’s involvement in an attack by others on the defendant following the incident giving rise to the charges here. We find no error.

The defendant was arrested and charged with the crimes of which he was convicted after he was identified by the victim, Robert Szymanski, as the man who had shot Szymanski during the course of an unsuccessful drug transaction in Bridgeport. At trial, both Szymanski and the defendant testified to a conversation between them which had taken place in the courtroom corridor during the course of the trial. Each man gave a different version of the verbal encounter. Szymanski testified that the defendant had threatened that “I am going to blow you away.” The defendant claimed during his defense that Szymanski had at that time told him that “his friends took care of me,” in reference to injuries suffered in an attack made upon the defendant between the time of his arrest and trial.

In its charge, the court instructed the jury pursuant to the state’s request that the threat allegedly made to Szymanski by the defendant in the courthouse did not create a presumption of guilt, but could be considered as evidence “tending to prove the defendant’s consciousness of guilt.”¹ Defense counsel took an exception to this instruction because of the absence of any reference in the charge to Szymanski’s alleged statement about which the defendant had testified. The court declined to reinstruct the jury.

The defendant claims in his brief on appeal that the court erred in refusing “to provide the jury with guidance as to permissible inferences from the defendant’s testimony concerning the same out-of-court incident for which it had provided the jury with an inference which could be drawn from the victim’s version of the encounter.” The defendant, who had claimed at trial that he acted in self-defense, argues now that such evidence of the victim’s “violent character” was relevant as it corroborated the defendant’s version of the shooting and was also “evidence of consciousness of wrongdoing by Szymanski.” The defendant maintains that fairness dictates that the jury should have been “informed of their right to draw inferences favorable to the defendant from the victim’s alleged statement to him, or in the very least, that they could find the defendant’s testimony [regarding the corridor conversation] to have been more credible than that offered by the victim.” We do not agree.

There is no merit to the defendant’s claim that the jury instruction was erroneous because the jury was not also informed of the victim’s alleged incriminating statement to the defendant. The defendant had testified as to the conversation between himself and Szymanski. Therefore, the evidence of the victim’s comments was before the jury. The defendant’s claim is predicated upon his argument that evidence of Szymanski’s “violent character” was relevant in view of his claim that he acted in self-defense. State v. Gooch, 186 Conn. 17, 21, 438 A.2d 867 (1982). The defendant did not request that the jury be so instructed. Although an exception was taken to the court’s charge as given concerning the corridor conversation, the defendant did not at that time make this claim that he now advances on appeal. He did not give this reason in the exception taken to the charge at trial. Practice Book § 854 (now § 852)² provided in relevant part as follows: “Immediately after the conclusion of the charge to the jury, counsel taking exception shall, out of the presence of the jury, state distinctly the matter objected to and the ground of the exception. The appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.”

We generally do not consider a claimed error regarding a charge unless the matter is covered by a written request to charge or an exception has been taken immediately after its delivery. State v. Fullwood, 193 Conn. , 476 A.2d 550 (1984); State v. Alston, 5 Conn. App. 571, 573, 501 A.2d 764 (1985), cert, denied, 198 Conn. 804, 503 A.2d 1186 (1986). In addition, the exception taken must “ ‘ “state distinctly the matter objected to and the ground” ' ” of the exception or objection. State v. Williams, 202 Conn. 349, 362, 521 A.2d 150 (1987); State v. Hill, 201 Conn. 505, 512, 518 A.2d 388 (1986); State v. Cook, 8 Conn. App. 153, 156, 510 A.2d 1383 (1986).

There is no error.

1 The court’s jury charge relative to this incident was as follows: “[T]he state claims the defendant made threats to the victim, Mr. Szymanski. Such conduct by a defendant does not create a presumption of guilt. You may consider such evidence, however, as tending to prove the defendant’s consciousness of guilt. Conduct of this nature following alleged criminal activity is not sufficient itself to establish the defendant’s guilt, but they are facts which, if you find proven, may be considered by the jury in light of all the other proven facts in deciding the question of his guilt or innocence. Whether or not the defendant did any of these things, and if so, whether it shows a consciousness of guilt and significant weight to be attached to such circumstances, is a matter to be determined by you, the jury. You should consider and weigh the conduct of the defendant. If you find such occurred in connection with all the other evidence in the case, you give it such weight as in your sound judgment it is fairly entitled to receive.”

2 “[Practice Book] Sec. 852. necessity for requests to charge and exceptions [Amended June 23, 1986, to take effect Oct. 1, 1986]. The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.” necticut State Register and Manual (1987) p. 606; and that the municipality has adopted a merit system for its employees. 30 Spec. Acts 404, No. 420, c. 3 (the codification of the charter of the city of New Britain); see also General Statutes § 52-163; State v. Lindsay, 109 Conn. 239, 241-42, 146 A. 290 (1929).