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State v. Cintron

Court of Appeals of Connecticut

March 13, 1990

STATE of Connecticut
v.
Jose CINTRON.

Argued Dec. 6, 1989.

[21 Conn.App. 49] William R. Schipul, Asst. Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Gary Nicholson, Asst. State's Atty., for appellee (State).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and LAVERY, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134(a)(3) and possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a). The defendant claims that the trial court erred (1) in making factual determinations that prevented the defendant from effectively attacking the credibility of the [21 Conn.App. 50] state's key witness and (2) in refusing to give the jury a missing witness instruction. We find no error.

The jury could reasonably have found the following facts. On the evening of April 17, 1987, Bridgeport police officers responded to a report of a robbery. Upon their arrival at the scene, the officers found the victim standing on the sidewalk. As the victim was being interviewed, the defendant drove by. The victim pointed out the defendant as the man who had robbed her, whereupon the officers pursued him in their marked patrol car.

Page 140

The police followed the defendant as he continued down the street and made a left turn. The defendant made three more turns and drove a short distance further Before he realized he was being followed. He then pulled over to the side of the road and stopped. The officers had noticed that while they were following the defendant, he leaned over to his right several times and disappeared from view. With their guns drawn, they approached the defendant's car and ordered him not to move. One of the officers noticed that the passenger door was open and on the ground under the door were two pieces of jewelry and several packets, later found to contain narcotics. Similar packets were later found in the defendant's vehicle.

The victim testified that the jewelry found by the officers had been taken from her by the defendant while she was in his apartment earlier that evening. She further testified that when she arrived at his apartment, she and the defendant became embroiled in an argument centering on her unwillingness to continue her relationship with the defendant because of his drug dealing. During the dispute, the defendant threatened the victim with an axe or machete, and when she tried to leave, he seized the jewelry that she was wearing.

[21 Conn.App. 51] The victim offered inconsistent testimony as to who, if anyone, witnessed the argument and the taking of the jewelry. She also testified that she had seen, in the defendant's apartment, packets similar to those discovered by the police and that she had sold drugs for the defendant on several previous occasions.

The defendant offered a different version of the events. He claimed that he had given the jewelry to the victim for her birthday and demanded its return when he noticed that she was no longer wearing a watch he had given her. He feared that she was going to sell the jewelry in order to buy drugs, and he claimed that she voluntarily surrendered the jewelry when he asked for it. He denied ever threatening her with a machete or axe. In regard to the drugs found near his car, the defendant testified that the victim had borrowed his car that day, and he suspected that the drugs belonged to her.

I

The defendant first claims that certain comments by the trial court deprived him of his due process rights to a fair trial. See U.S. Const., amend. XIV; Conn. Const., art. I, § 8. [1] These comments, the defendant asserts, amounted to factual determinations that improperly invaded the province of the jury and prevented the defendant from attacking the credibility of the state's key witness, the victim.

It is elementary jurisprudence that a judge, especially in a criminal case, must strive to conduct a trial in as close to an " ' "atmosphere of perfect impartiality" ' " as possible. Fair v. Warden, 211 Conn. 398, 413, 559 [21 Conn.App. 52] A.2d 1094, cert. denied, --- U.S. ----, 110 S.Ct. 512, 107 L.Ed.2d 514 (1989). A judge must be careful to avoid any indication of bias, particularly in front of the jury. State v. Delarosa, 16 Conn.App. 18, 27, 547 A.2d 47 (1988). The defendant offers three incidents as support for his claim that the trial judge improperly bolstered the victim's credibility. The first took place, outside the presence of the jury, during a hearing on the defendant's motion for dismissal, and the last two occurred during defense counsel's closing argument.

Concerning the first incident, the defendant argues that the court improperly anticipated the defense argument that the defendant sought to recover the jewelry from the victim in order to prevent ...


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