State v. De Santis

423 A.2d 149, 178 Conn. 534, 1979 Conn. LEXIS 879
CourtSupreme Court of Connecticut
DecidedJuly 31, 1979
StatusPublished
Cited by14 cases

This text of 423 A.2d 149 (State v. De Santis) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. De Santis, 423 A.2d 149, 178 Conn. 534, 1979 Conn. LEXIS 879 (Colo. 1979).

Opinion

Loiselle, J.

The defendant John De Santis was charged in a two-count information with assault with intent to commit murder in violation of General Statutes § 53-12 (Rev. to 1969) and with having a dangerous weapon, a firearm, without a proper permit issued therefor, in a motor vehicle, in violation of General Statutes § 29-38 (Rev. to 1969). 1 He was found guilty of the lesser included offense of aggravated assault on the first count and guilty of the second count as charged. This appeal is taken from the judgment rendered on the verdict.

From the evidence presented, the jury could have found, in part, as follows: Samuel Fenn and the defendant John De Santis went to a friend’s apartment in Waterbury late in the afternoon on May 16, 1971. While they were there, Anthony Caruso, the victim, along with three of his friends arrived at the apartment. Fenn became involved in an argument with Caruso and Caruso’s friends. When Caruso and his friends were asked to leave, they did and went to the Porter Street Restaurant in Waterbury. The argument apparently concerned an alleged threat Fenn made to one of Caruso’s friends which was aimed at Caruso among others. The alleged threat was, “If you guys want to bother me and make trouble for me, I’ll blow all your heads off.” At first, Fenn denied making the threat, but later conceded: “If I said anything like that, I apologize.”

*537 After the argument at the Waterbury apartment, Fenn drove the defendant to his home where the defendant picked up a gun. Fenn then drove to the Porter Street Restaurant, parked outside and blew the horn. Caruso heard the horn, looked out the window and saw Fenn and the defendant parked in the street. Fenn, who was in the driver’s seat, and the defendant, who was in the passenger’s seat, motioned for him to come outside. Caruso came outside to the car, followed by three of his friends, two of whom had been with him at the Waterbury apartment. Caruso came over to the passenger’s side of the car, where the defendant was seated. Fenn and Caruso, continuing their argument, traded some heated words.

Fenn testified that he thought he saw Caruso go for a gun, so he backed up the ear and yelled to the defendant, “Shoot him, shoot him.” In response, the defendant picked up the gun that he had concealed, pointed it through the car window and shot Caruso in the shoulder.

Following the shooting, Fenn and the defendant went to Fenn’s apartment. From there Fenn’s wife drove them to Larry Bellemare’s house. The defendant, Fenn, Bellemare and his girl friend then left by car for Cape Cod. On their way, they got lost and ended up traveling to Cape Cod by way of Pittsfield, Massachusetts and Bennington, Vermont. Fenn testified that during the trip the defendant disassembled the gun and threw the parts in a lake near Pitts-field, Massachusetts.

While on Cape Cod, Fenn telephoned Lieutenant Angelo Santoro of the Waterbury police and told him that both he (Fenn) and the defendant were involved in the shooting of Caruso. Fenn and the *538 defendant left the Cape the next day, May 17,1971, to return to Connecticut. Fenn dropped the defendant off in Hartford and continued on to Waterbury where he turned himself in to the police. Three or four days later Fenn brought the defendant to the police station.

At trial, the defendant claimed he was driving Fenn’s car and that Fenn was in the passenger’s seat. He testified that when they were parked outside the Porter Street Restaurant, he heard someone say, “shoot him,” at which point he threw the car into reverse. He further testified that Fenn fired from inside the car as he, the defendant, backed the car up the street. 2

On appeal, the defendant has raised five assignments of error, all of which are related to evidentiary rulings. The defendant first argues that the court erred in excluding his explanation of why he went to the scene of the shooting. He contends that the crime charged, that of assault with intent to murder, requires proof of a specific intent and that the court erred in excluding evidence that went toward negating specific intent. The actual testimony proffered did not relate directly to the defendant’s intent, but was a hearsay revelation of specific prior misconduct on the part of the victim and his friends. Words which tend to prove circumstantially the declarant’s feelings or state of mind are admissible. State v. Cronin, 64 Conn. 293, 305-306, 29 A. 536 (1894); McCormick, Evidence (2d Ed.) § 249. The defendant was allowed to testify as to his state of mind; 3 what was excluded was his testimony as to *539 rumors about prior acts of the victim. At the time, although defense counsel took exception to its exclusion, he never claimed that this testimony was admissible for any reason other than that “it goes to his reason for being at Porter Street that evening.” See State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967). The testimony about prior acts of the victim in this case did not fit within any exception to the hearsay rule - and thus was properly excluded. Even if it were determined that the court erred, it was harmless error as the jury did not find the defendant guilty of the crime charged, but of the lesser included offense of aggravated assault; State v. Whiteside, 148 Conn. 208, 217, 169 A.2d 260, cert. denied, 368 U.S. 830, 82 S. Ct. 52, 7 L. Ed. 2d 33 (1961); which does not require specific intent as a necessary element of that crime. State v. Bitting, 162 Conn. 1, 6, 291 A.2d 240 (1971).

The defendant next asserts that the court erred in striking his answer to a question asked by the prosecution. The testimony in issue centered on the confrontation at the Waterbury apartment. On cross-examination, the defendant stated that he was scared. When asked at what point he was scared, he responded that it was when Penn told him that Caruso and his gang were involved in a recent murder. The court sustained the state’s objection and struck the answer. Previously, the defendant had attempted to put in this evidence and the court had not allowed it. Had the defendant claimed self-defense as the reason for shooting at Caruso, his state of mind would have been relevant. It could very well have been affected by his knowledge that the victim had supposedly been involved recently in a murder. “When a defendant charged with murder asserts that he killed in self-defense, his state of *540 mind — the existence and reasonableness of apprehension of such violence by the deceased as to justify the defensive measures adopted — becomes material.” State v. Padula, 106 Conn. 454, 456, 138 A. 456 (1927). The evidence also would have been admissible to show who might be the aggressor. State v. Miranda, 176 Conn.

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Bluebook (online)
423 A.2d 149, 178 Conn. 534, 1979 Conn. LEXIS 879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-de-santis-conn-1979.