Argued
March 5, 2019
Substitute
information charging the defendant with the crime of assault
in the second degree, brought to the Superior Court in the
judicial district of Fairfield, geographical area number two,
and tried to the jury before Doyle, J.; verdict and
judgment of guilty, from which the defendant appealed to this
court. Affirmed.
Lisa
J. Steele, assigned counsel, for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were John C. Smriga and Margaret E.
Kelley, state’s attorneys, for the appellee (state).
Alvord, Moll and Bear, Js.
OPINION
ALVORD, J.
The
defendant, Wagner Gomes, appeals from the judgment of
conviction, rendered after a jury trial, of assault in the
second degree in violation of General Statutes § 53a-60
(a) (2).[1] On appeal, the defendant claims that the
trial court erred in omitting from its jury instruction his
proposed sentence, "[h]owever, you may consider evidence
of the police investigation as it might relate to any
weaknesses in the state’s case, "[2]and, in doing so,
deprived him of his right to present a defense of
investigative inadequacy.[3] We affirm the judgment of the trial
court.
The
jury reasonably could have found the following facts. In the
early morning hours of September 12, 2015, the victim,
Edilene Brandao, along with several other persons, including
Raphael Morais, [4] attended a birthday party at the Brazilian
Sports Club (club), located at 29 Federal Street, in
Bridgeport. Shortly after arriving, the victim had one drink,
and Morais went to the bar to get a drink for himself. Morais
confronted the defendant’s girlfriend, who was at the
bar, pushed her, and made offensive remarks to her. A fight
then broke out inside the club between the defendant and
Morais. Security guards intervened and separated them. The
defendant was taken outside, and Morais was taken to the
patio.
The
victim went to the patio with Morais. There was a fence at
the back of the patio, and the victim had her back to that
fence. The victim proceeded to ask Morais why he was
fighting, and Morais responded, "it’s him."
The victim then turned to face the fence and saw the
defendant standing approximately two feet away from her, on
the outside of the fence, with a bottle in his hand. The
defendant then struck the victim on the forehead with the
bottle.
The
club’s owner, Demetrio Ayala, Jr., knew the defendant
because he visited the club several times per month. Ayala
observed the fight between the defendant and another person
known to him as "Rafael."[5] Ayala, after hearing
shouting on the patio, went to investigate and discovered
that the victim was bleeding. Ayala then went out the front
door of the club in order to try to find the defendant, whom
he saw in the parking lot running away from the club. Ayala
subsequently called the police.
Before
the police arrived, the victim was transported to St.
Vincent’s Medical Center in Bridgeport by private car
in the company of several persons who were in the club that
night. She arrived at the hospital at about 12:30 a.m., where
she was seen by a triage nurse and received treatment for the
bleeding and pain. Several hours later, the victim was also
treated by a plastic surgeon and then released.[6]
John
Topolski and Matthew Goncalves, officers with the Bridgeport
Police Department, were among the first police officers to
arrive at the club shortly after 1:30 a.m. Upon their
arrival, they observed that "[the scene] was a
mess" and that "there [were] maybe a hundred people
scattered amongst the streets." Officer Topolski briefly
spoke with Morais, who had, he observed, a swollen face, one
eye that was swollen shut, profuse facial bleeding, clothes
covered in blood, and an apparently dislocated
shoulder.[7] Once the scene was secure, the officers
departed for the hospital, intending to question Morais, who
also had been taken to the hospital before the police
completed their initial on-site investigation. While the
officers were en route to the hospital, they received a radio
dispatch informing them that a woman, who also had been
injured at the club, was already at the hospital.
When
the officers arrived at the hospital, Officer Topolski went
in search of the injured woman, and Officer Goncalves went in
search of Morais. Although Officer Goncalves located Morais,
he was unable to speak with Morais because his wounds were
being treated, and he was being prepared for surgery. Officer
Topolski located the victim in the waiting area of the
hospital’s emergency department and identified her as
the woman who had been injured at the club. The victim was in
the company of approximately five other individuals. Officer
Topolski observed that the victim was crying and visibly
shaken. She had blood covering her face and was holding gauze
to her head. Despite her physical and emotional condition,
the victim was coherent enough to provide information to
Officer Topolski. In her verbal statement to Officer
Topolski, the victim denied that Morais may have been the
aggressor in some type of altercation with her. Officer
Topolski, while he was at the hospital, also obtained the
name of the defendant, but it was not clear from whom he
received that information.[8]
On
October 2, 2015, the victim went to the Bridgeport police
station with her attorney, where she was interviewed by
Detective Paul Ortiz in the presence of Sergeant Gilbert
Valentine about the events that occurred on September 12,
2015. Detective Ortiz reviewed Officer Topolski’s
report of the events. Through this report, Detective Ortiz
learned that the defendant might be a suspect. Detective
Ortiz prepared a photographic array that included a
photograph of the defendant, which he showed to the victim.
When the victim viewed the photograph of the defendant, she
became emotional and started to cry. She examined the entire
array and then selected the defendant’s photograph, on
which she wrote that she was "100 percent"
confident that he was the person who had attacked her. The
defendant was subsequently arrested.
At
trial, the defendant sought to persuade the jury that
reasonable doubt existed regarding the victim’s
identification of the defendant as the person who assaulted
her. The main defense advanced by the defendant was that the
police had conducted an inadequate investigation of the
incident.
During
closing arguments, defense counsel argued that "this
case screams reasonable doubt. . . . [T]he police completely
failed in this case, and they completely failed [the victim].
They didn’t go back to that scene that night. They
didn’t identify the crime scene. They didn’t take
any photos so that you, ladies and gentlemen, could see how
the scene looked that night. How the lighting looked. They
never tried to get any surveillance video. . . . They
didn’t confirm what happened." Defense counsel
also argued that the police "spent ninety minutes on
this investigation, " and that the case "boil[ed]
down to one witness and what she saw in a split second, and
she may very well believe that [the defendant] did this to
her. But the police did nothing to confirm as to what Officer
Goncalves said they needed to do."
In
connection with his defense of inadequate police
investigation, the defendant had filed a written request to
charge the jury, which provided in relevant part: "[1]
You have heard some arguments that the police investigation
was inadequate and biased. [2] The issue for you to decide is
not the thoroughness of the investigation or the competence
of the police. [3] However, you may consider evidence of the
police investigation as it might relate to any weaknesses in
the state’s case. [4] Again, the only issue you have to
determine is whether the state, in light ...