State v. Lopes

826 A.2d 1238, 78 Conn. App. 264, 2003 Conn. App. LEXIS 330
CourtConnecticut Appellate Court
DecidedJuly 29, 2003
DocketAC 22596
StatusPublished
Cited by21 cases

This text of 826 A.2d 1238 (State v. Lopes) 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. Lopes, 826 A.2d 1238, 78 Conn. App. 264, 2003 Conn. App. LEXIS 330 (Colo. Ct. App. 2003).

Opinion

Opinion

FOTI, J.

The defendant, Troy Lopes, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a) and carrying a pistol without a permit in violation of General Statutes § 29-35 [266]*266(a).1 On appeal, the defendant claims that the trial court improperly (1) instructed the jury on the charge of attempt to commit murder, (2) deprived him of a fair trial as a result of the court’s remarks, criticism and elicitation of evidence from witnesses, (3) restricted cross-examination and (4) failed to admonish jurors as required. We reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. On September 7, 2000, at about 1:47 p.m., the defendant, who was driving a grayish Honda Accord, approached the victim, Sean Spencer, while he was standing outside the police substation at Stratford Avenue and Sixth Street in Bridgeport. They had had words some days earlier, and an exchange again took place. The defendant told Spencer that the defendant was “going to get him,” and that he knew where Spencer worked and where his mother worked. Spencer replied that he knew where the defendant lived. At that point, the defendant threatened to kill Spencer. The parties were eight to ten feet apart during that exchange. The defendant, who had a grayish handgun that was five to [267]*267six inches in length,2 fired two gunshots at Spencer, who retreated behind a truck unharmed.3

Officer Raymond Ryan, a member of the Bridgeport police department, upon hearing the gunshots, observed a beige colored Honda proceeding away from the scene. He recognized the car as belonging to the defendant, who, two days earlier, had admitted ownership and produced paperwork to that effect. That evening, the police located the Honda parked across the street from the house of the defendant’s grandmother, where the defendant had been living. The police found a .380 caliber shell casing in the backseat behind the driver’s side. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly instructed the jury on the law as applicable to the charge of attempt to commit murder, in the following three ways. First, the court’s instructions included a mandatory presumption that the defendant had the intent to kill solely by his use of a deadly weapon. Second, the court instructed the jury on the full statutory definition of intent as set forth in General Statutes § 53a-3 (11). Third, the court instructed the jury on both subdivisions of the attempt statute. The defendant did not properly preserve his claim for appeal; he neither filed a request to charge on intent or attempt to commit murder, nor did he note his objection to the court’s instruction on either intent or attempt to commit murder. The defen[268]*268dant seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).4

“Under prong three of Golding, a challenged jury instruction constitutes a clear constitutional violation that clearly deprives a defendant of a fair trial if it is found reasonably possible that the jury was misled by the court’s instruction.” State v. Tate, 59 Conn. App. 282, 286, 755 A.2d 984, cert. denied, 254 Conn. 935, 761 A.2d 757 (2000).

We will review the defendant’s claim pursuant to Golding because the record is adequate, and an improper instruction on an element of an offense is of constitutional magnitude. See State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998).

“When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . [I]n appeals [269]*269involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Citation omitted; internal quotation marks omitted.) State v. Rodriguez, 63 Conn. App. 529, 534, 777 A.2d 704, cert. denied, 256 Conn. 936, 776 A.2d 1151 (2001).

It is the defendant’s contention that the instructions as a whole misled the jury and diluted the state’s burden of proof. We agree.

A

The defendant first argues that the instructions misled the jury by creating a mandatory presumption that he had the intent to kill solely by virtue of his use of a deadly weapon.

The court instructed as follows: “An intent to cause death may be inferred circumstantially. Evidence as to the type of the weapon used, the manner in which it’s used, the type of wound inflicted, the events leading to and immediately following attempt at the death of a victim. One who uses a deadly weapon upon the vital part of another will be determined to have intended the probable result of that act, and from such a circumstance, a proper inference may be drawn in some cases that there was an intent to kill. And the use of a deadly weapon upon the vital part of another, it will be deemed that it is intended the probable result of that act and, from such a circumstance, a proper inference may be drawn that there was an intent to cause death. Any inference may be drawn from the nature of the weapon, and the manner of its use is an inference of fact to be drawn by the jury from the consideration of these and all other circumstances in the case.” (Emphasis added.)

It is the defendant’s position that the phrases “will be determined to have intended” and “it will be deemed [270]*270that it is intended” impermissibly shifted the burden of proof. We disagree.

Our Supreme Court, in the exercise of its supervisory powers, directed trial courts not to use such language in the future. State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002). Aponte, however, was decided after the defendant’s trial. The defendant argues that although the court in Aponte found the charge not to be harmful, we should not so view the charge herein.

In the present case, however, as in Aponte, the court used permissive language, “may be inferred,” as to the intent to cause death. “[P]ermissive language tempers the challenged portion of the instruction and ensures that a reasonable jury will not interpret the charge in an unconstitutional manner.” Id., 521.

On the basis of our review of the jury charge as a whole, we conclude that it is not reasonably possible that the court’s instruction misled the jury and, thus, the defendant was not deprived of a fair trial by that particular instruction.

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Cite This Page — Counsel Stack

Bluebook (online)
826 A.2d 1238, 78 Conn. App. 264, 2003 Conn. App. LEXIS 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lopes-connappct-2003.