Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Irizarry

Court of Appeals of Connecticut

May 14, 2019

STATE OF CONNECTICUT
v.
FELIX A. IRIZARRY

          Argued January 17, 2019

         Procedural History

         Two part substitute information charging the defendant, in the first part, with two counts each of the crimes of assault in the second degree and breach of the peace in the second degree, and, in the second part, with being a persistent serious felony offender, brought to the Superior Court in the judicial district of New Britain, geographical area number fifteen, where the first part of the information was tried to the jury before D'Addabbo, J.; verdict of guilty; thereafter, the second part of the information was tried to the court; judgment of guilty, from which the defendant appealed to this court. Affirmed.

          Peter G. Billings, assigned counsel, with whom, on the brief, was Zachary E. Reiland, assigned counsel, for the appellant (defendant).

          James M. Ralls, assistant state's attorney, with whom, on the brief, were Brian Preleski, state's attorney, and Evelyn Rojas, assistant state's attorney, for the appellee (state).

          Alvord, Sheldon and Pellegrino, Js.

          OPINION

          PELLEGRINO, J.

         The defendant, Felix A. Irizarry, appeals from the judgment of conviction, rendered against him following a jury trial on one count each of assault in the second degree in violation of General Statutes § 53a-60 (a) (1) and (2), and one count each of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1) and (2). On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of second degree assault in violation of § 53a-60 (a) (1), and (2) prosecutorial improprieties during closing argument resulted in the violation of his right to a fair trial. We disagree and, accordingly, affirm the judgment of the trial court.

         The jury was presented with the following evidence on which to base its verdict. On March 22, 2014, the victim, David Bennett, was standing in front of a neighborhood market in New Britain when he encountered the defendant exiting the market. After a short verbal exchange between them, the defendant retrieved a golf club from a vehicle parked on the opposite side of the street and began to chase the victim. During the course of his pursuit, the defendant struck the victim several times with the golf club, including once in the arm and once in the face, which resulted in the victim being knocked to the ground. While the victim was on the ground, the defendant continued to strike him with the club, hitting him at least once in the chest. An eyewitness called 911 and reported the incident. The defendant was later arrested when a truck matching the description of the vehicle that fled the scene of the assault was stopped by New Britain police. The defendant was found crouching in the rear cargo hold of the vehicle. A golf club was also found in the vehicle.

         In a four count information, the defendant was charged with assault in the second degree in violation of § 53a-60 (a) (1), [1] assault in the second degree in violation of § 53a-60 (a) (2), [2] breach of the peace in the second degree in violation of § 53a-181 (a) (1), and breach of the peace in the second degree in violation of § 53a-181 (a) (2).[3] During the five day trial, the jury heard testimony with respect to the assault and the victim's injuries, which included an admission by the defendant that he struck the victim with a golf club. As a result of the assault, the victim experienced a momentary loss of consciousness and suffered a fractured jaw. Emergency medical responders found that the victim was bleeding from his left ear when they arrived at the scene.

         The victim's treating physician, Paul Edward Russo, Jr., testified at trial that the victim sustained injuries to his left cheek, left jaw, right forearm and chest wall. Russo further testified that when the victim presented at the hospital emergency department, his arm was tender and swollen, with a visible contusion and skin avulsion, in addition to a contusion on the left side of the face. A computerized axial tomography scan revealed a nondisplaced fracture of the victim's lower jaw. Three sutures were necessary to close the wound on the victim's face. The victim was discharged from the hospital after he was treated with antibiotics and analgesics, with instructions that he restrict his diet to liquid puree. He was further instructed to follow-up at a maxillofacial clinic regarding his jaw injury. The victim testified that, as of the date of trial, his jaw still was not fully healed.

         As part of his trial strategy, the defendant chose to testify in his own defense. Specifically, he testified that, although he did, in fact, strike the defendant, he did so in self-defense. Despite the defendant's testimony, the jury found the defendant guilty on all charges. On May 26, 2016, the defendant was sentenced to seven years of incarceration, followed by three yearsofspecial parole.[4]This appeal followed.

         The defendant raises two claims on appeal. The defendant first claims that there was insufficient evidence to convict him of assault in the second degree under § 53a-60 (a) (1), in that the state did not establish that he caused ‘‘serious physical injury'' to the victim, as defined by General Statutes § 53a-3 (4).[5] Second, the defendant claims that he was deprived of a fair trial because of prosecutorial improprieties during closing argument, in particular, the prosecutor's reference to and reliance on facts not in the record. Additional facts and procedural history will be set forth as necessary.

         I

         The defendant first claims that the evidence presented at trial was insufficient to establish, beyond a reasonable doubt, that he caused ‘‘serious physical injury'' to the victim, as defined by § 53a-3 (4). We disagree.

         ‘‘A person can be found guilty of assault in the second degree under . . . § 53a-60 [(a) (1)] only if he causes serious physical injury to another person.'' (Emphasis omitted.) State v. McCulley, 5 Conn.App. 612, 615, 501 A.2d 392 (1985). Section 53a-3 (4) defines ‘‘serious physical injury'' as any ‘‘physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.'' ‘‘[S]erious physical injury'' does not require a showing of permanency; State v. Barretta, 82 Conn.App. 684, 689, 846 A.2d 946, cert. denied, 270 Conn. 905, 853 A.2d 522 (2004); or ‘‘require expert medical testimony, '' so long as ‘‘there [is] . . . sufficient direct or circumstantial evidence or a combination of both presented to the jury from which it may find such injury.'' State v. Rumore, 28 Conn.App. 402, 414, 613 A.2d 1328, cert. denied, 224 Conn. 906, 615 A.2d 1049 (1992). Whether an injury constitutes a ‘‘serious physical injury, '' for the purpose of § 53a-60 (a) (1), is a fact intensive inquiry and, therefore, is a question for the jury to determine. State v. Ovechka, 292 Conn. 533, 545-47, 975 A.2d 1 (2009).[6]

         ‘‘In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty.'' (Internal quotation marks omitted.) State v. Stephen J. R., 309 Conn. 586, 593-94, 72 A.3d 379 (2013).

         At trial, the emergency medical services responder, the victim's emergency department treating physician, and the victim all testified as to the injuries sustained by the victim.[7] During the state's direct examination of the victim, the victim testified: ‘‘[The defendant] hit me in the jaw and it fractured my jaw. My whole jaw [was] dislocated.'' The victim further testified: ‘‘I stepped back in defense . . . trying to avoid being hit. He swung several times . . . [and] hit me several times. . . . [O]nce in the jaw, once in the rib cage, took a divot out of my wrist. I still have the mark there and I still have the fractured jaw . . . .'' (Emphasis added.) The following exchange between the state and the victim took place:

‘‘[The Prosecutor]: After he hit you in the jaw . . . [w]as that the point ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.