State v. Cruz

800 A.2d 1243, 71 Conn. App. 190, 2002 Conn. App. LEXIS 397
CourtConnecticut Appellate Court
DecidedJuly 23, 2002
DocketAC 20786
StatusPublished
Cited by17 cases

This text of 800 A.2d 1243 (State v. Cruz) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Cruz, 800 A.2d 1243, 71 Conn. App. 190, 2002 Conn. App. LEXIS 397 (Colo. Ct. App. 2002).

Opinion

Opinion

BISHOP, J.

The defendant, Pedro Cruz, appeals from the judgment of conviction, rendered after a jury trial, of assault of a peace officer in violation of General Statutes (Rev. to 1997) § 53a-167c.1 The defendant claims that the court improperly (1) restricted his cross-examination of the state’s key witness, (2) refused to grant his motion for a mistrial on the ground of prosecutorial misconduct during closing argument, (3) precluded him from making a “missing witness” argument, (4) instructed the jury on an essential element of the offense and (5) refused to instruct the jury on the duty to retreat. We affirm the judgment of the trial court.

[193]*193The jury reasonably could have found the following facts. On February 7, 1998, at approximately 10:30 p.m., two uniformed officers from the Hartford police department, Carlos Ocasio and Felix Ortiz, were dispatched to an apartment building at 140 New Britain Avenue to investigate a reported domestic disturbance. Upon their arrival, a man at the front door let the officers inside and directed them to the second floor. The officers proceeded up the stairs and encountered Glorimel Rosa on the second floor landing. Rosa later was identified as the defendant’s live-in girlfriend and the mother of his infant son. Rosa was crying and hysterical, and her face was red. When the officers attempted to calm her, she blurted out, “He’s going to kill me.” She also mentioned her baby and referred to a “father,” which the officers took to mean Rosa’s father. When the officers asked her if anyone was in the apartment, she responded, “Yeah. Don’t go in there. He’s crazy.” She then fled down the stairs.

The officers proceeded to the apartment, walked through the open door without knocking and announced: “Police, is anybody home?” The apartment was dark, except for a lighted room in the rear that appeared to be a kitchen. The officers initially did not see anyone, but as they continued to call out, the silhouette of a man, later identified as the defendant, hastily approached them from the lighted room.

The defendant appeared aggravated and unleashed a tirade laced with obscenities demanding to know who had summoned the officers and why they were there. The defendant accused the officers of illegally entering the apartment, insisted that they needed a search warrant and told them to get out. As the defendant spoke, he was “chest to chest” with Ocasio. The officers asked the defendant to step back, as he was blocking their way to the kitchen, where Ortiz believed they might find Rosa’s father. As Ortiz attempted to go around him, [194]*194the defendant hit Ocasio in the face with his fist. Ortiz responded by striking the defendant with his nightstick, and the defendant stumbled back. A brawl ensued, in which the defendant swung at the officers with his arms and the officers struck the defendant on his arms, legs and head more than fifty times with their nightsticks and sprayed him with pepper spray.

During the fight, Jeffrey Pianka, the building manager, entered the apartment. Pianka repeatedly told the officers to cease hitting the defendant and, according to Ortiz, attempted to pull Ortiz away. Ocasio chased Pianka from the apartment and radioed for assistance. A short time later, Officer Chris Manning arrived. After Manning helped subdue and handcuff the defendant, he pursued and arrested Pianka.

Several other officers, including Dennis O’Connor, also responded to the call for assistance. When O’Con-nor arrived, he radioed for an ambulance. Emergency medical personnel found the defendant handcuffed with severe bleeding from his face and neck. The defendant and Ortiz both were taken to Hartford Hospital. Ortiz was treated for a bruised and bloody nose and released that night. The defendant was treated for a broken left forearm, severe lacerations to his head and face, bruises and abrasions to his face, arms, legs and torso, and exposure to pepper spray. Thereafter, Ocasio and Manning discussed the incident and prepared a report. They then spoke with Ortiz, who signed the report.

The defendant was arrested and charged in a three count information with assault in the third degree as to Rosa in violation of General Statutes § 53a-61 (count one), assault of a peace officer in violation of § 53a-167c (count two) and interfering with an officer in violation of General Statutes § 53a-167a (count three). The jury acquitted the defendant of counts one and three, but convicted him of count two. The court denied the [195]*195defendant’s subsequent motion for a new trial and sentenced him to five years imprisonment, execution suspended, and three years probation. This appeal followed.

I

The defendant first claims that the court improperly restricted defense counsel’s cross-examination of the state’s key witness in violation of his constitutional right to confrontation. We disagree.

At trial, counsel for the defense attempted to show that the officers had acted outside the scope of their duties by using excessive force on the defendant. Both Ocasio and Ortiz admitted to striking the defendant on his head with their nightsticks, but Ortiz testified on cross-examination that in his official report, he had described the defendant’s injuries as bruising, redness and minor lacerations. When counsel specifically asked if Ortiz had noticed “a hole in [the defendant’s] lip where his teeth went all the way through,” Ortiz replied in the negative.

Thereafter, the defendant’s medical records were admitted into evidence without objection. Defense counsel showed Ortiz a series of photographs marked for identification depicting numerous injuries to the defendant. Ortiz testified, however, that he did not recognize the injuries. When the state objected to counsel’s graphic description of the injuries shown in one of the photographs, the court advised: “I think what you’re going to have to do, counsel, is just ask him if he recognizes the photograph and if it’s a fair and accurate representation of the way [the defendant] looked. . . . If he doesn’t know, that’s as far as we go with it.” Counsel replied, “Okay. That’s fine.”

Defense counsel continued to show Ortiz photographs of the defendant’s injuries. Each time Ortiz was [196]*196shown a photograph, he responded that he did not recognize the injuries. At one point, the state objected and asked whether counsel had a good faith basis to believe that Ortiz could authenticate the photograph shown. The court instructed Ortiz that “if ... any of this looks like the way [the defendant] looked . . . then you can indicate yes accordingly, and then we can proceed from there.” Ortiz was shown several additional photographs and he testified that he was not able to verify any as a fair and accurate representation of the defendant’s condition following the incident.

Defense counsel later began a question to Ortiz by quoting from the defendant’s medical records: “Patient found in doorway handcuffed with severe hemorrhaging on face and neck . . . .” The state objected, and the court asked why counsel was using the medical report, which had not been produced by Ortiz, as a basis for the question. Defense counsel responded that he wanted to see if the report refreshed the officer’s recollection: “I have a record by medical personnel that contradicts his testimony, and I want to see if he wants to correct his testimony.” The state objected, and the court declared: “[I]t’s been admitted.

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Cite This Page — Counsel Stack

Bluebook (online)
800 A.2d 1243, 71 Conn. App. 190, 2002 Conn. App. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cruz-connappct-2002.