State v. Liam M. ( 2017 )

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STATE v. LIAM M.—CONCURRENCE AND DISSENT
SHELDON, J., concurring in part and dissenting in
part. I agree with the majority’s conclusion that the
court erred in denying the motion to suppress filed by
the defendant, Liam M., and thus that his conviction
for disorderly conduct must be reversed and remanded
for a new trial. However, I respectfully disagree with the
majority’s determination that the evidence presented
at trial was sufficient to support the defendant’s convic-
tion for assault in the second degree. More specifically,
I do not agree that the evidence was sufficient to prove
that the plastic polyvinyl chloride (PVC) pipe1 used by
the defendant to strike the complainant was a danger-
ous instrument, because the pipe was not shown to be
capable, when used as the defendant allegedly used it—
to swing once at the complainant with sufficient force
to cause a bruise on her hip—of causing death or serious
physical injury.
A ‘‘ ‘[d]angerous instrument’ ’’ is defined by statute
as ‘‘any instrument, article or substance which, under
the circumstances in which it is used or attempted or
threatened to be used, is capable of causing death or
serious physical injury . . . .’’ General Statutes § 53a-
3 (7). ‘‘ ‘Serious physical injury,’ ’’ in turn, is defined as
‘‘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 . . . .’’ General Stat-
utes § 53a-3 (4). Serious physical injury is not merely
an aggravated form of pain. See State v. Milum, 197
Conn. 602, 619, 500 A.2d 555 (1985) (pain is not concept
embodied in statutory definition of serious physical
injury).
In light of the foregoing definitions, a fact finder
called upon to determine if an object used to inflict
physical injury upon a victim was a dangerous instru-
ment must evaluate its particular injury causing poten-
tial in the ‘‘circumstances in which it [was] actually
used . . . .’’ (Emphasis added; internal quotation
marks omitted.) State v. Leandry, 161 Conn. App. 379,
389, 127 A.3d 1115, cert. denied, 320 Conn. 912, 128
A.3d 955 (2015). Our case law reveals that such an
evaluation appropriately involves consideration of sev-
eral interrelated factors, including: the physical charac-
teristics of the alleged dangerous instrument, as they
relate to the object’s potential to cause serious physical
injury when used as the defendant actually used it; the
manner in which the alleged dangerous instrument was
actually used by the defendant to injure the victim,
including the force and frequency of its use and the
parts of the victim’s body against which it was used;
and the victim’s special vulnerability, if any, to serious
physical injury when an object with such physical char-
acteristics is used as the defendant actually used it
to inflict physical injury upon her. See, e.g., id., 390
(hypodermic syringe that was potentially contaminated
with blood-borne pathogen constituted dangerous
instrument when used to stab victim); State v. McColl,
74 Conn. App. 545, 557, 813 A.2d 107 (‘‘ ‘feet and foot-
wear’ ’’ were dangerous instrument when used to kick
victim because of size of defendant, age and health
condition of victim, location of kicking on victim’s body,
and number and force of kicks, as intensified by weight
of footwear), cert. denied, 262 Conn. 953, 878 A.2d 782(2003); State v. Vuley, 15 Conn. App. 586, 588–89, 545
A.2d 1157 (1988) (hard object used to strike victim
several times on head was dangerous instrument
because when used, it felt like ‘‘solid piece’’ and ‘‘pipe,’’
and such use resulted in loss of victim’s sight for several
moments, hematoma and lacerated scalp that required
seven stitches to close [internal quotation marks omit-
ted]); State v. Johnson, 14 Conn. App. 586, 595–96, 543
A.2d 740 (shod foot held to be dangerous instrument
where defendant’s act of kicking victim with it, while
victim was lying on his stomach with left side of his
face on ground and hands cuffed behind his back, was
variously described as ‘‘a good solid kick that sounded
like an arm breaking . . . picking up his foot and bring-
ing it down on the victim’s right temple, cheek and
forehead; and as taking a step and kicking the victim
in the head’’), cert. denied, 209 Conn. 804, 548 A.2d 440(1988); State v. Frazier, 7 Conn. App. 27, 39–40, 507
A.2d 509 (1986) (key was dangerous instrument when
used to inflict abrasions and lacerations to victim’s neck
and face, where medical testimony was presented as
to potential for serious injury to victim’s blood vessels,
larynx and trachea to result from such attack); State v.
Levine, 39 Conn. Supp. 494, 498, 466 A.2d 814 (1983)
(hose and nozzle used ‘‘in a whip-like fashion’’ to strike
victim on head held to be dangerous instrument).
In this case, the jury received very little evidence
about the physical characteristics of the plastic PVC
pipe the defendant used to strike the complainant’s hip.
The pipe was not seized by investigating police officers,
nor was it otherwise produced and admitted into evi-
dence. Thus, although a police photograph of the pipe
at the scene of the assault was introduced, from which
its external dimensions could be viewed and estimated
by comparing them to those of other objects depicted
in the photograph, no evidence was presented as to
its other, potentially more significant injury producing
characteristics, such as its weight or its density.
Nor was any evidence presented as to the ‘‘circum-
stances in which [the pipe was] actually used’’; State
v. Leandry, supra, 161 Conn. App. 389; apart from testi-
mony that it was swung once, not repeatedly, striking
the complainant’s buttocks with sufficient force to
cause a bruise where it struck her hip. There was, it
must be added, no evidence that the defendant threat-
ened to use the pipe in any manner, or that he attempted
to use it in some way other than swinging it in such a
manner as to strike and cause a bruise on the complain-
ant’s hip. Thus, for example, the evidence did not show
that he swung the pipe at the complainant more than
once; or that he swung it at or near a different part of
her body, where it might have caused more serious
harm than a bruise; or that he swung it at her wildly,
in such a manner as to make possible the striking of a
different, more sensitive or vulnerable part of her body,
thus potentially causing a serious physical injury. Fur-
thermore, apart from a photograph of the bruise on the
complainant’s hip that resulted from that single swing,
there was no evidence as to the amount of force with
which the plastic PVC pipe was used to strike her. Of
course, it is possible to imagine other scenarios in which
the use of a PVC pipe might be shown capable of causing
serious physical injury, such as a single blow to the
eyes, nose or ears that might be shown capable of caus-
ing serious disfigurement, or multiple blows to other,
more vulnerable or sensitive body parts, such as the
head, the genitals or the abdomen, that might be shown
capable of causing serious loss or impairment of the
function of a bodily organ. However, the theoretical
existence of other possible uses of a PVC pipe that
could have caused the complainant serious physical
injury, thus supporting a finding that the PVC pipe is
a dangerous instrument, provides no basis for making
such a finding in this case, where the evidence does
not show that the defendant actually engaged in any
such conduct.
The complainant, of course, did not actually sustain
a serious physical injury. Although the actual infliction
of serious physical injury is not required to prove that
an object used to inflict injury was a dangerous instru-
ment, the lack of such an injury in this case obviously
deprived the jury of any basis for inferring the pipe’s
injury producing potential from the injury alone. The
state did not present any medical testimony as to the
potential injurious consequences of striking the average
person with a plastic PVC pipe of the type here used,
much less the particular susceptibility of this complain-
ant to suffering serious physical injury when struck
once in the buttocks with such a pipe, as she was.
See, e.g., State v. McColl, supra, 74 Conn. App. 556(in determining whether ‘‘ ‘feet and footwear’ ’’ were
dangerous instrument, this court considered vulnerabil-
ity of victim, who was seventy-one years old and had
heart condition, and medical testimony presented that
part of body that defendant repeatedly kicked contains
several vital organs, including lungs and kidneys, as
to which older person, when kicked repeatedly, could
suffer serious internal injuries or death). Other than
having the opportunity to observe both the complainant
and the defendant when they testified, and to see the
complainant’s bruise in the photograph that was admit-
ted into evidence, the jury had no basis for inferring
the ultimate potential of the pipe to cause her serious
physical injury when used as the defendant used it here.
In conclusion, our law concerning dangerous instru-
ments is clear that an ‘‘object’s potential for injury . . .
must be examined only in conjunction with the circum-
stances in which it is actually used or threatened to be
used, and not merely viewed in terms of its dangerous
capabilities in the abstract.’’ (Internal quotation marks
omitted.) State v. Leandry, supra, 161 Conn. App. 389.
Here, at most, the jury could have found that the defen-
dant swung a plastic PVC pipe at the complainant once,
striking her in the buttocks and causing a bruise to her
hip. I do not believe that such evidence was sufficient
to support the jury’s finding, as required for a conviction
of assault in the second degree, that the PVC pipe the
defendant used to strike the complainant was, as used,
a dangerous instrument.
On the basis of the foregoing, I would reverse the
defendant’s conviction for assault in the second degree,
and remand this case to the trial court with direction
to render a judgment of acquittal on that charge and
to afford the defendant a new trial on the charges of
disorderly conduct, as the majority hereby orders, and
on the lesser included offense of assault in the third
degree, on which a judgment of conviction would other-
wise enter, in the absence of other trial error, upon the
defendant’s acquittal of assault in the second degree.
1
Although the defendant described the PVC pipe at one point as a ‘‘ ‘metal
tube,’ ’’ the state consistently at trial represented that the PVC pipe was
plastic. In addition to the testimony of Officer Gaspar of the North Haven
Police Department that the PVC pipe was plastic, the state’s attorney told
the jury during closing argument that ‘‘PVC piping is a hard plastic used
often times in plumbing.’’ Although the defendant’s single description of the
pipe as a ‘‘ ‘metal tube’ ’’ may reveal the defendant’s perception of the heft
or rigidity of the pipe, the record is bereft of any actual description of the
weight of the pipe.