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STATE OF CONNECTICUT v. MARIO CHAVEZ
(AC 41424)
DiPentima, C. J., and Lavine and Prescott, Js.
Syllabus
Convicted of the crime of manslaughter in the first degree in connection
with the stabbing death of the victim, the defendant appealed to this
court. He claimed that the trial court improperly deprived him of his
constitutional right to a fair trial when it failed to instruct the jury,
sua sponte, about the inherent shortcomings of simultaneous foreign
language interpretation of trial testimony, and when it instructed the
jury that it could consider as consciousness of guilt evidence that he
changed his shirt shortly after the victim was stabbed. Held:
1. The defendant’s claim, raised for the first time on appeal, that the trial
court improperly failed to instruct the jury, sua sponte, regarding the
inherent shortcomings of translated testimony was unavailing: although
the defendant requested review of his unpreserved claim pursuant to
State v. Golding (213 Conn. 233), because both counsel provided the
court with proposed jury instructions, attended an in-chambers charging
conference, and had a subsequent opportunity to comment on the court’s
proposed instructions on the record before they were given to the jury,
the defendant was presented with a meaningful opportunity to review
and comment on the court’s instructions, and because he failed to
raise the claim asserted on appeal, he waived his right to challenge
the constitutionality of the instruction under Golding; moreover, the
defendant having conceded that the trial court’s failure to instruct the
jury on the inherent shortcomings of simultaneous foreign language
interpretation of trial testimony was an issue of first impression, and
having failed to cite to any authority that stands for the proposition that
a court’s failure to provide, sua sponte, such an instruction constitutes
a reversible error, he could not demonstrate that the court’s failure to
instruct the jury in that respect was an error so clear and so harmful
that it constituted plain error such that a failure to reverse would result
in manifest injustice.
2. The trial court did not abuse its discretion by providing a consciousness
of guilt jury instruction as to the defendant’s act of changing his shirt
after the incident; at trial, the defendant, in testifying on his own behalf,
did not dispute that he returned to his apartment after the incident to
change his shirt, and the evidence presented at trial reasonably could
have permitted a jury to draw the inference that the defendant’s act of
changing his shirt was motivated by a desire to avoid detection by law
enforcement because the shirt had blood or dirt on it from the altercation
with the victim.
Argued May 20—officially released July 9, 2019
Procedural History
Information charging the defendant with the crimes
of murder and manslaughter in the first degree, brought
to the Superior Court in the judicial district of Fairfield,
and tried to the jury before E. Richards, J.; verdict and
judgment of guilty of manslaughter in the first degree,
from which the defendant appealed to this court.
Affirmed.
Joshua Michtom, assistant public defender, for the
appellant (defendant).
Jennifer F. Miller, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Michael A. DeJoseph, senior assistant state’s
attorney, for the appellee (state).
Opinion
PER CURIAM. The defendant, Mario Chavez, appeals
from the judgment of conviction, rendered following a
jury trial, of manslaughter in the first degree in violation
of General Statutes § 53a-55 (a) (1). On appeal, the
defendant claims that the court improperly (1) deprived
him of his constitutional right to a fair trial by failing
to instruct the jury, sua sponte, about the ‘‘inherent
shortcomings’’ of simultaneous foreign language inter-
pretation of trial testimony, and (2) instructed the jury
that it could consider, as consciousness of guilt evi-
dence, that the defendant changed his shirt shortly after
the victim was stabbed. We disagree and, accordingly,
affirm the judgment of conviction.
On the basis of the evidence adduced at trial, the
jury reasonably could have found the following facts.
On the morning of May 27, 2012, the defendant drove
a number of friends home after a night of drinking in
Bridgeport. Upon arriving in the neighborhood of one
of the friends, an argument developed and a physical
altercation ensued between two of the passengers in
the defendant’s vehicle. During the fight, a small group
of onlookers, who had observed the altercation from a
nearby home, approached the combatants in the street.
Thereafter, some of the onlookers attempted to break
up the fight, while the victim approached the defendant.
The victim confronted the defendant and forcibly
removed a chain worn around the defendant’s neck. In
response, the defendant drew a knife and stabbed the
victim once in the chest. Shortly after stabbing the vic-
tim, the defendant fled the scene. Surveillance footage
taken from the defendant’s apartment complex showed
the defendant returning to his apartment a short time
later. Surveillance footage also showed the defendant
leaving the complex not long after wearing a different
color shirt.
The following day, the defendant learned of the vic-
tim’s death and fled the country. The defendant ulti-
mately was apprehended and extradited to the United
States where he was charged with murder and man-
slaughter in the first degree in connection with the
victim’s death.
The case was tried before a jury in October and
November, 2017. The defendant testified in his own
defense with the assistance of a Spanish-English inter-
preter. The defendant asserted that he stabbed the vic-
tim accidentally while trying to defend himself.
The defendant was found not guilty of murder but
was found guilty of manslaughter in the first degree.
The court sentenced the defendant to a total effective
sentence of seventeen years of incarceration followed
by three years of special parole. This appeal followed.
Additional facts and procedural history will be provided
The defendant first claims that the court improperly
failed to instruct the jury, sua sponte, regarding the
‘‘inherent shortcomings’’ of translated testimony. Spe-
cifically, the defendant argues that because his testi-
mony was translated from Spanish to English, it may
have appeared less coherent or credible than a witness
who testified in English. According to the defendant,
the court’s failure to provide an instruction on ‘‘the
limitations of interpreted testimony’’ denied him of his
constitutional right to a fair trial. We disagree.
As a preliminary matter, we note that the defendant
raises this claim for the first time on appeal, requesting
review under State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 120 A.3d 1188 (2015).1 He did not request
that the court instruct the jury regarding the inherent
limitations or flaws in translated foreign language testi-
mony, nor did he comment on or object to a lengthy
instruction given by the court on how the jury should
evaluate translated foreign language testimony.
Despite the defendant’s request for review pursuant
to Golding, ‘‘when the trial court provides counsel with
a copy of the proposed jury instructions, allows a mean-
ingful opportunity for their review, solicits comments
from counsel regarding changes or modifications and
counsel affirmatively accepts the instructions proposed
or given, the defendant may be deemed to have knowl-
edge of any potential flaws therein and to have waived
implicitly the constitutional right to challenge the
instructions on direct appeal.’’ State v. Kitchens, 299
Conn. 447, 482–83, 10 A.3d 942 (2011). Our Supreme
Court has held further that if a claim of instructional
error has been waived under Kitchens, the defendant
is not entitled to Golding review. See State v. Bellamy,
323 Conn. 400, 410, 147 A.3d 655 (2016).
In the present case, both counsel provided the court
with proposed jury instructions, attended an in-cham-
bers charging conference, and had a subsequent oppor-
tunity to comment on the court’s proposed instructions
on the record before they were given to the jury.
Because the defendant was presented with a meaningful
opportunity to review and comment on the court’s
instructions,2 and having done so, failed to raise the
claim he now asserts on appeal, the defendant has
waived his right to challenge the constitutionality of
the instruction under Golding.3 See State v. Kitchens,
supra, 299 Conn. 482–83.
The defendant further argues that, even if his claim
is not reviewable under Golding, it is reversible under
the plain error doctrine. See State v. McClain, 324 Conn.
802, 812–14, 155 A.3d 209 (2017) (Kitchens waiver does
not preclude plain error review). ‘‘[T]he plain error doc-
trine is reserved for truly extraordinary situations [in
which] the existence of the error is so obvious that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings. . . . [An appellant]
cannot prevail under [the plain error doctrine] . . .
unless he demonstrates that the claimed error is both
so clear and so harmful that a failure to reverse the
judgment would result in manifest injustice. . . . Put
another way, plain error review is reserved for only the
most egregious errors.’’ (Citations omitted; emphasis
altered; footnote omitted; internal quotation marks
omitted.) Id.
In the present case, the defendant concedes that a
trial court’s failure to instruct the jury on the ‘‘inherent
shortcomings’’ of simultaneous foreign language inter-
pretation of trial testimony is an issue of first impres-
sion, and he can cite to no authority, binding or
otherwise, that stands for the proposition that a court’s
failure to provide, sua sponte, such an instruction con-
stitutes a reversible error. Because the defendant can-
not demonstrate that the claimed error is, in fact, an
error, he is unable to demonstrate that failing to instruct
the jury in this respect is an error so clear and so
harmful that a failure to reverse would result in manifest
injustice. See State v. Fagan, 280 Conn. 69, 88, 905 A.2d
1101 (2006) (defendant could not prevail under plain
error doctrine in part because issue raised was matter
of ‘‘first impression’’), cert. denied, 549 U.S. 1269, 127
S. Ct. 1491, 167 L. Ed. 2d 236 (2007). Accordingly, the
defendant’s first claim must fail.4
Next, the defendant claims that the court abused its
discretion by instructing the jury that it could consider,
as consciousness of guilt, evidence that the defendant
changed his shirt shortly after the victim was stabbed.
We disagree. ‘‘We review a trial court’s decision to give
a consciousness of guilt instruction under an abuse of
discretion standard.’’ State v. Vasquez, 133 Conn. App.
785, 800, 36 A.3d 739, cert. denied, 304 Conn. 921, 41
A.3d 661 (2012). ‘‘In considering consciousness of guilt
instructions, our Supreme Court has observed: Gener-
ally speaking, all that is required is that the evidence
have relevance . . . the fact that ambiguities or expla-
nations may exist which tend to rebut an inference of
guilt . . . does not [by itself] make an instruction . . .
erroneous.’’ (Internal quotation marks omitted.) State
v. Mann, 119 Conn. App. 626, 632–33, 988 A.2d 918,
cert. denied, 297 Conn. 922, 998 A.2d 168 (2010).
At trial, the defendant, in testifying on his own behalf,
did not dispute that he returned to his apartment after
the incident to change his shirt and, after having done
so, left the apartment soon after to investigate what
had happened to the victim. Despite this testimony, the
defendant objected to the court’s proposed conscious-
ness of guilt instruction, claiming that the act of chang-
ing his shirt after the stabbing was ‘‘a normal activity’’
given the circumstances. On the basis of our review of
the court’s charge and the evidence presented at trial,
which reasonably could have permitted a jury to draw
the inference that the defendant’s act of changing his
shirt was motivated by a desire to avoid detection by
law enforcement because the shirt had blood or dirt
on it from the altercation with the victim, the court did
not abuse its discretion by providing the consciousness
of guilt instruction as to the defendant’s act of changing
his shirt after the incident.
The judgment is affirmed.
1
Pursuant to Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following conditions are met:
(1) the record is adequate to review the alleged claim of error . . . (2) the
claim is of constitutional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt. In the absence of any one of these
conditions, the defendant’s claim will fail.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel
R., supra, 317 Conn. 781.
2
The defendant does not argue otherwise.
3
Even on appeal, the defendant has failed to provide a proposed instruc-
tion that he claims should have been given to the jury.
4
In the alternative, the defendant also requests that this court use its
supervisory authority to order a new trial in order to cure the inherent
harm associated with translated testimony. ‘‘Supervisory authority is an
extraordinary remedy that should be used sparingly . . . .’’ (Internal quota-
tion marks omitted.) State v. Edwards, 314 Conn. 465, 498, 102 A.3d 52
(2014). We decline to exercise our supervisory powers in the present case.