State v. Diaz

893 A.2d 495, 94 Conn. App. 582, 2006 Conn. App. LEXIS 131
CourtConnecticut Appellate Court
DecidedMarch 28, 2006
DocketAC 25308
StatusPublished
Cited by15 cases

This text of 893 A.2d 495 (State v. Diaz) 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. Diaz, 893 A.2d 495, 94 Conn. App. 582, 2006 Conn. App. LEXIS 131 (Colo. Ct. App. 2006).

Opinion

Opinion

DiPENTIMA, J.

The defendant, Jose Diaz, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), criminal mischief in the third degree in violation of General Statutes § 53a-117 (a) (1), and larceny in the sixth degree in violation of General Statutes §§ 53a-119 and 53a-125b (a). The defendant claims that the trial court improperly (1) precluded a defense witness from testifying at trial, (2) removed a juror during the trial, (3) denied his Batson1 challenge and (4) instructed the jury on burglary in the first degree.2 In addition, the defendant claims that prosecutorial misconduct deprived him of the right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On June 30, 2003, the defendant appeared four separate times at the back porch of 681 Myrtle Avenue, Bridgeport, the home of Raul Cruz, in order to retrieve a television that had been stolen from his thirteen year old daughter. Cruz, who was in a wheelchair due to an accident that he had had years before, Randolph Armstrong and Brenda Cook, who were in Cruz’s home to assist him, were present on each occasion.

[585]*585The defendant had been told that the stolen television was located at Cruz’ home, and he twice went to the back porch with his daughter and later with two other men. On the fourth and final time, the defendant returned to the back porch with his brother, Conrad Diaz, his eldest son and another man. During that encounter, an argument ensued, escalating to fisticuffs, and the four men entered the home, overturning Cruz in his wheelchair. Amidst the melee, household items were broken, apocketbook and cellular telephone were taken from the floor, and Conrad Diaz drew a knife and stabbed Armstrong. The defendant was stopped later that day by the police and was found to be in possession of Cook’s identification card.

The defendant was charged in October, 2003, with burglary in the first degree in violation of § 53a-101 (a) (2), robbery in the first degree in violation of § 53a-134 (a) (1), assault in the first degree in violation of § 53a-59 (a) (1), assault in the third degree in violation of § 53a-61 (a) (2), criminal mischief in the third degree in violation of § 53a-117 (a) (1), and larceny in the sixth degree in violation of §§ 53a-119 and 53a-125b (a). A jury trial was held from February 5 to 9, 2004. After the state completed its case-in-chief, the defendant moved for a judgment of acquittal; the court granted the motion as to assault in the third degree and denied the motion as to all other counts. On February 6, 2004, the state filed a substitute information charging the defendant with the remaining five counts. The jury found the defendant guilty on the counts of burglary in the first degree, criminal mischief in the third degree and larceny in the sixth degree, and not guilty on the remaining counts. The defendant filed a motion for a judgment of acquittal and a new trial, which was denied. The court sentenced the defendant to a total of eight years incarceration.3 This appeal followed.

[586]*586I

The defendant first claims that the court violated his right to present a defense under the sixth amendment to the United States constitution by allowing a witness, his brother Conrad Diaz, to invoke his fifth amendment privilege against self-incrimination through representation of counsel, rather than requiring him to take the witness stand and personally invoke the fifth amendment privilege at a hearing. Because it was not preserved, we decline to review the defendant’s claim.

The defendant made no objection to the procedure followed at trial.4 Further, he has not advanced a theory by which this claim should be reviewed. “It is well [587]*587established that generally this court will not review claims that were not properly preserved in the trial court. . . . Where a defendant fails to seek review of an unpreserved claim under either [State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989)] or the plain error doctrine [as set forth in Practice Book § 60-5], this court will not examine such a claim.” (Citation omitted; internal quotation marks omitted.) State v. Abraham, 64 Conn. App. 384, 404 n.18, 780 A.2d 223, cert. denied, 258 Conn. 917, 782 A.2d 1246 (2001). Accordingly, we decline to review the defendant’s claim.

II

The defendant next claims that the court improperly dismissed a juror during the trial. The defendant argues that the court’s removal of the only Hispanic juror on the case constituted an abuse of discretion. We disagree.

On February 6,2004, as the panel of jurors was assembling, a court clerk handed a note to the court that had been given to him by one of the jurors. The court read counsel the note,5 which stated that it had been brought to the juror’s attention that the defendant’s sister worked in the same bank branch as the juror and that the juror’s grandmother was very ill, neither of which she believed would impede her ability to serve as a juror. The note had been written to “bring it to [the court’s] attention just in case it gets in the way of the [588]*588trial.” The court proceeded to discuss with counsel their thoughts on the issue and decided to call the juror in to ask her opinion. After answering the questions of the court and both parties, during which she affirmed that “[s]o far, [she] didn’t feel any different,” the juror was asked to leave with the marshal to allow the court and counsel to confer.

Defense counsel argued that the juror should remain because she was the only Hispanic juror6 and because he believed that she was being honest in her confidence that she would remain impartial despite the situation at work. The state responded that the juror’s ethnicity should make no difference with regard to her impartiality and that she had two potential conflicts: her work situation and her sick grandmother. After hearing the arguments, the court decided to dismiss the juror, and defense counsel objected.

We first set out our unequivocal standard of review of a trial court’s decision to remove a juror. “[T]he trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion.” (Internal quotation marks omitted.) State v. Bowens, 62 Conn. App. 148, 154, 773 A.2d 977, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001). “A trial court may dismiss a juror who is unable to perform his or her duties upon a finding of cause. ... On appeal, the defendant bears the burden of showing that the rulings of the trial court resulted in a jury that could not judge his guilt impartially.” (Citations omitted; internal quotation marks omitted.) State v. Mills, 57 Conn. App. 356, 363-64, 748 A.2d 891 (2000).

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Cite This Page — Counsel Stack

Bluebook (online)
893 A.2d 495, 94 Conn. App. 582, 2006 Conn. App. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-diaz-connappct-2006.