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State v. DeMartin

Court of Appeals of Connecticut

January 2, 1990

STATE of Connecticut
v.
Barry DeMARTIN.

Argued Oct. 20, 1989.

Judith A. Sarathy, Sp. Public Defender, with whom, on the brief, was Temmy Ann Pieszak, New Haven, for appellant (defendant).

Geoffrey E. Marion, Deputy Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and David P. Gold, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and SPALLONE and LAVERY, JJ.

[20 Conn.App. 431] SPALLONE, Judge.

The defendant appeals his conviction, after a jury trial, of the crime of manslaughter in the second degree in violation of General Statutes § 53a-56(a)(1).

The defendant's sole claim is that the trial court erred in its charge to the jury on justified physical force in defense of a third person as defined by General Statutes § 53a-19. [1] The defendant alleges that the court incorrectly defined "initial aggressor" so as to eliminate the defendant's justification if the jurors found that the deceased had threatened imminent physical harm but the defendant had been the first to strike a blow.

[20 Conn.App. 432]

Page 1035

The jury could reasonably have found the following facts. Shortly after midnight on March 27, 1987, the patrons were gathered at the Greenwood Lodge in Meriden. In a room adjoining the bar area, the victim, Richard Serio, was shooting pool with Jill Thayer. Serio's girl friend, Shawn Godfrey, was tending bar. The defendant, Barry DeMartin, was seated at a table with his sister, Rhonda DeMartin, his girl friend, Rhonda Gerard, and his sister's boyfriend, Edward Jaskot. Both the victim and the defendant appeared to be intoxicated.

During the evening, these two groups of people became embroiled in several disputes among themselves and with each other. Rhonda DeMartin and Rhonda Gerard argued and tussled with Thayer over who had last put money in the jukebox. Thayer shortly thereafter saw the defendant holding his pool cue to Rhonda Gerard's throat. When Thayer made a comment to the defendant, Rhonda DeMartin responded unpleasantly and punched Thayer in the face. Thayer thereupon threw her pool cue at Rhonda DeMartin.

The two women engaged in an increasingly vociferous shouting match until Shawn Godfrey, in an attempt to break up the altercation, ordered the unruly patrons to leave. Rhonda DeMartin, refusing to leave, got into a hair-pulling fistfight with Godfrey. As Godfrey tried to push Rhonda DeMartin through the exit door of the poolroom, Rhonda Gerard entered into the brawl and was thrown to the floor. The defendant stepped in and punched Godfrey in the stomach.

While Thayer and the victim looked on, Godfrey, the two Rhondas and the defendant skirmished near the exit door. The victim at this point started toward the melee. According to some witnesses, the defendant moved toward the victim and struck him on the side of his head with a pool cue. The defendant and other witnesses testified that the victim was on Rhonda [20 Conn.App. 433] DeMartin's back, pulling her hair, when the defendant struck the victim with a pool cue. All witnesses saw the victim fall, but could not agree on whether he struck his head on a bench as he collapsed.

The police arrived moments later, at approximately 12:31 a.m., and saw the defendant walking away from the bar. An ambulance arrived within minutes and transported the victim to a hospital, where he was declared dead. The cause of death was determined to be blunt head trauma with internal hemorraghing.

The police went to the defendant's home at approximately 3:15 a.m. and were told by the defendant that he had not been involved in a fight and that he had left the bar at 10:45 p.m. the previous night. He was subsequently arrested and tried to a jury on the charge of manslaughter in the first degree. DeMartin's defense was that he was justified in using force to defend his sister from the victim's attack. He was convicted of the lesser included offense of manslaughter in the second degree and this appeal followed.

The defendant's claim of error focuses entirely on whether the trial court incorrectly defined "initial aggressor" in its jury charge on the defense of justification. The defendant introduced sufficient evidence at trial to entitle him to an instruction on the defense of justification. See State v. Folson, 10 Conn.App. 643, 646, 525 A.2d 126 (1987). Specifically, the defendant alleged and testified that he acted to defend his sister from an assault by the victim. Accordingly, the trial court instructed the jury on the defense of a third person under General Statutes § 53a-19(a). See State v. Silveira, 198 Conn. 454, 470, 503 A.2d 599 (1986) (statute covers defense of third person) The court also twice charged the jury on the "initial aggressor" exception to the defense of justification, pursuant to § 53a-19(c). In explaining the term, the court twice stated that "a person is not justified in using physical force if, intending[20 Conn.App. 434] to cause injury to the other person he is the initial aggressor, that is the first one to use physical force."

The defendant concedes that in defending his sister he struck the first blow against the victim. He denies that he is therefore ...


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