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State v. Morales

Court of Appeals of Connecticut

April 18, 2017

STATE OF CONNECTICUT
v.
ANGEL MORALES

          Argued November 29, 2016

         Appeal from Superior Court, judicial district of Hartford, Dewey, J.

          Daniel P. Scholfield, with whom, on the brief, was Hugh F. Keefe, for the appellant (defendant).

          Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Robin Krawczyk, senior assistant state's attorney, for the appellee (state).

          Beach, Mullins and Bear, Js. [*]

          OPINION

          BEAR, J.

         The defendant, Angel Morales, appeals from the judgment of conviction, rendered after a jury trial, of intentional manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a) and criminal possession of a firearm in violation of General Statutes § 53a-217 (a) (1) (criminal possession). On appeal, the defendant claims that the trial court erred (1) by denying his motion to bifurcate the elements of criminal possession or to sever the murder charges brought against him from the criminal possession charge; (2) in instructing the jury on combat by agreement; and (3) in refusing to instruct the jury on the common-law defense of necessity. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. On the evening of August 29, 2013, the defendant drove with his friend, Christopher Spear, and two female companions to a nightclub in downtown Hartford known as ‘‘Up or On the Rocks.'' The defendant parked his car in a nearby parking lot located in the area of High Street and Church Street. Also at the club that night were the victim, Miguel Delgado, his brother, Jose Delgado, [1] and a friend, Steven Castano, all of whom had arrived by taxi. While on the second floor of the club and with the defendant present, Delgado and Spear bumped into each other; Spear spilled his drink on Delgado. An argument ensued, during which Spear made a racially charged threat to shoot someone. Returning from the bar, Castano found the two men arguing and tried to separate them. Spear, however, slapped the drink Castano was holding at him, the victim, and Delgado. At that point, the club's security escorted Spear, the defendant, and their companions out of the club while detaining the victim, Delgado, and Castano inside the club in an effort to defuse the situation and prevent violence.

         Club security held the victim and Delgado in the club for about ten minutes. When they left, Delgado and Spear renewed their argument outside of the nightclub where the defendant had been waiting with Spear. With the defendant present, Spear again threatened to shoot someone. Although their friends, but not the defendant, attempted to defuse the altercation, Delgado and Spear agreed to engage in a fistfight, and the parties proceeded to the parking lot where the defendant had parked his car.

         When the men reached the parking lot, Spear struck Delgado on the head with a hard object injuring him. When Spear attempted to retrieve the object, which had fallen to the ground, Delgado punched him, rendering him unconscious. Despite the fact that Spear was unconscious on the ground, Delgado continued to beat Spear, causing him significant injuries to his head and face.

         Meanwhile, the defendant recognized that the object with which Spear struck Delgado was a gun. The defendant went to pick it up, but the victim, who was behind him, engaged the defendant and the two men struggled with each other on the ground. In the course of the ensuing struggle, the defendant obtained the gun. As the victim stood up, he struck the defendant in the face and the defendant fired a single shot, which struck the victim in the chest.

         The victim ran toward Allyn Street where he collapsed on the sidewalk. Despite intervention by Delgado, a passerby who administered cardiopulmonary resuscitation, and medical personnel, the victim later died at the hospital at 2:15 a.m. of a gunshot wound to his chest.

         After shooting the victim, the defendant fled. He discarded the gun in a garbage receptacle. He then drove away, leaving behind Spear and the women who had accompanied them.

         On October 29, 2014, in a single long form information, the state charged the defendant with murder in violation of General Statutes (Rev. to 2013) § 53a-54a and reckless manslaughter in the first degree with a firearm in violation of § 53a-55a (a) (murder charges), as well as criminal possession. At trial, the defendant stipulated that he shot the victim, but he testified both that the gun accidently discharged and that he was acting in self-defense. The jury returned a verdict of not guilty on the murder charge, but it found him guilty of the lesser included offense of intentional manslaughter in the first degree with a firearm. Additionally, the jury found the defendant guilty of reckless manslaughter in the first degree with a firearm, and criminal possession. The court accepted the jury's verdict but a month later vacated the guilty verdict on the reckless manslaughter charge because of double jeopardy concerns. The court then sentenced the defendant to thirty-five years incarceration, suspended after twenty years, with five years probation on the intentional manslaughter conviction, and five years incarceration and a fine of $5000 for the criminal possession conviction. The court ordered that the sentences be served concurrently for a total effective sentence of thirty-five years incarceration, suspended after twenty years, with five years probation, and a $5000 fine. This appeal followed. Further facts will be set forth as necessary to the resolution of this appeal.

         I

         The defendant contends on appeal that the court abused its discretion when it denied his motion to either bifurcate or sever the charges against him. Specifically, he argues that he was prejudiced by having to defend simultaneously the murder charges and the criminal possession charge. He claims prejudice because, in order to prove criminal possession, the state had to present evidence that he previously had been convicted of a felony. We disagree.

         The following additional facts and procedural history are necessary for the resolution of this claim. On the first day of evidence and after the jury had been selected, the defendant moved to bifurcate or sever the charges against him. He proposed two alternative remedies. First, he asked that the court bifurcate the proof of the elements of criminal possession, submitting to the jury in the first part of the trial only the element of possession. Then, if the jury found that the element of possession was proven, he would stipulate to having been previously convicted of a felony. Alternatively, he asked the court to sever[2] the criminal possession charge from the murder charges, and to hold consecutive trials using the same jury. Conceding that the charges were logically connected, the defendant argued that proof of the convicted felon element of criminal possession would be unduly prejudicial if he did not testify on his own behalf in this case, [3] as was his right. Based on the state's assertion that it would agree to stipulate to the prior felony conviction without naming the conviction or underlying conduct, the court determined that, with a limiting instruction, any prejudicial impact of trying the charges together would be circumscribed, and, accordingly, it denied the motion.

         A

         The defendant first sought to bifurcate the elements of criminal possession. Section 53a-217 (a) provides in relevant part: ‘‘A person is guilty of criminal possession of a firearm . . . when such person possesses a firearm . . . and (1) has been convicted of a felony . . . .'' As this court has previously stated: ‘‘No useful purpose would be served by a separate information alleging only the prior conviction. . . . [A]n information alleging only that a defendant possessed a handgun, without mention of his prior conviction, would fail to allege any cognizable offense under our penal code.'' State v. Banta, 15 Conn.App. 161, 173, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A.2d 1086 (1988). Accordingly, the court did not abuse its discretion when it denied the defendant's motion to bifurcate the elements of criminal possession.

         B

         In the alternative, the defendant sought to sever the criminal possession charge from the murder charges. Before analyzing the defendant's claim, we set forth the applicable law and standard of review. ‘‘A judicial authority may order that two or more indictments or informations or both, whether against the same defendant or different defendants, be tried together. . . . A judicial authority may also order separate trials if it appears that a defendant is prejudiced by joinder. . . . This does not mean that severance is to be had for the asking. . . . The question of severance lies within the discretion of the trial court. We will not disturb the trial court's conclusion on the issue absent a clear abuse of discretion. The discretion to sever a trial should be exercised only if a joint trial will substantially prejudice the defendant. Substantial prejudice is more than disadvantage and the formidable task of demonstrating an abuse of discretion and that a joint trial resulted in substantial prejudice falls to the defendant. . . . Simply put, the test to be applied is whether substantial injustice will result if the charges are tried together.'' (Citations omitted; internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 343, 662 A.2d 1199 (1995).

         In determining whether a refusal to order separate trials was an abuse of discretion when one of the charges involves proof of the prior commission of a felony, this court considers the five factors enunciated in State v.Banta, supra, 15 Conn.App. 170-71:[4] ‘‘[1] the manner in which the evidence entered the case and the extent of the jury's knowledge of the facts underlying the prior felony conviction . . . [2] the adequacy of any cautionary instructions given by the court . . . [3] the use of the prior felony evidence by the prosecution in argument to the jury . . . [4] the likelihood that the prior felony conviction evidence will ...


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