State v. James E. ( 2015 )

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STATE OF CONNECTICUT v. JAMES E.*
(AC 34715)
DiPentima, C. J., and Keller and Sullivan, Js.
Argued September 11, 2014—officially released January 20, 2015
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Timothy H. Everett, assigned counsel, with whom,
on the brief, were Lucas Nevola, Pamela List, John
Shriver, Matthew Kalthoff and Nicholas Presto, certi-
fied legal interns, for the appellant (defendant).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Michael Dearington, state’s attorney,
and John Waddock, supervisory assistant state’s attor-
ney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, James E., appeals
from the judgment of conviction, rendered after a jury
trial, of two counts of assault of an elderly person in
the first degree in violation of General Statutes § 53a-
59a, reckless endangerment in the first degree in viola-
tion of General Statutes § 53a-63 (a), and risk of injury
to a child in violation of General Statutes § 53-21 (a)
(1). On appeal, the defendant claims that (1) there was
insufficient evidence to support his conviction, (2) his
right to due process was violated as a result of prosecu-
torial impropriety, (3) the court improperly denied his
supplemental request to charge the jury, and (4) his
conviction and sentencing for two counts of assault
of an elderly person in the first degree violated the
constitutional prohibition against double jeopardy. We
are not persuaded by any of the defendant’s claims,
and, accordingly, affirm the judgment of the trial court.
Faced with conflicting testimony from several wit-
nesses regarding the events in this case, the jury reason-
ably could have found the following facts.1 The
defendant rented an apartment in New Haven from the
victim, Douglas E.,2 to whom he is related. The victim
had visited the defendant’s apartment on three separate
occasions to repair the kitchen floor. On March 23,
2010, the victim met David Haywood, Juan Louis LeBron
and Nathan Green3 at the apartment to work on the
floor. The defendant had not permitted Haywood,
LeBron and Green entry into the apartment to start
working; only after the victim had arrived were the men
granted access to the apartment.
The defendant and his young child remained in the
apartment while the men worked. At some point later
that morning, the victim, sitting at the kitchen table,
used a ratchet wrench to change a saw blade. The defen-
dant informed the victim that all of the workers needed
to leave so that he could prepare lunch for his child.
The victim responded: ‘‘That is totally unacceptable.’’
An argument between the victim and the defendant
ensued. At one point, after the victim felt that the defen-
dant had made a hostile gesture toward him, he told
the defendant not to approach because he would hit
the defendant with the ratchet wrench.4 The defendant
asked if the victim was threatening him, to which the
victim replied: ‘‘No.’’
The defendant walked by the victim, who believed
that the argument had concluded. LeBron, who was
present in the kitchen during the argument, also
believed that the incident had ended.5 The defendant
walked to a cabinet, retrieved a handgun,6 ‘‘racked’’ the
gun,7 turned and immediately shot the victim, who had
lunged toward the defendant. The victim grabbed the
defendant’s shirt, and again was shot. The victim rolled
back and forth on the ground, and when he had stopped,
the defendant pointed the gun at his head. The defen-
dant told the victim that he had one more bullet in
the gun and that he was going to kill the victim. The
defendant’s child was in the doorway of the adjacent
room and shouting: ‘‘Daddy, don’t shoot that gun.’’ The
defendant then picked up his child and left the room.
The victim was transported to the hospital and
received medical treatment and surgery for the trauma
resulting from the gunshot wounds, including damage
to his transverse colon and liver. He remained in the
hospital until June, 2010. At the time he sustained these
injuries, the victim was more than sixty years old.
Following a jury trial, the defendant was convicted
on all counts. The court ordered a total effective sen-
tence of twenty years incarceration, execution sus-
pended after ten years, and three years of probation.
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant first claims that the evidence was
insufficient to support his conviction.8 Specifically, he
argues that there was insufficient evidence to support
each of the four counts set forth in the state’s informa-
tion. He also contends that the state failed to disprove
the justification defense of self-defense beyond a rea-
sonable doubt. We are not persuaded by these
arguments.
At the outset, we note that the defendant preserved
this claim by moving for a judgment of acquittal at the
close of the state’s case and his case.9 See State v.
Calabrese, 279 Conn. 393, 401, 902 A.2d 1044 (2006).
Next, we set forth the relevant legal principles regarding
claims of insufficient evidence. ‘‘[T]he [d]ue [p]rocess
[c]lause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is
charged. . . . The standard of review for a sufficiency
of the evidence claim employs 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 reason-
ably 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 [its]
verdict. . . .
‘‘It is axiomatic that the jury must find every element
proven beyond a reasonable doubt in order to find the
defendant guilty of the charged offense, [but] each of
the basic and inferred facts underlying those conclu-
sions need not be proved beyond a reasonable doubt.
. . . If it is reasonable and logical for the jury to con-
clude that a basic fact or an inferred fact is true, the
jury is permitted to consider the fact proven and may
consider it in combination with other proven facts in
determining whether the cumulative effect of all the
evidence proves the defendant guilty of all the elements
of the crime charged beyond a reasonable doubt. . . .
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.’’ (Citations omitted; internal
quotation marks omitted.) State v. Reid, 123 Conn. App.
383, 391–92, 1 A.3d 1204, cert. denied, 298 Conn. 929,
5 A.3d 490 (2010); see also State v. Stephen J. R., 309
Conn. 586, 593–94, 72 A.3d 379 (2013); State v. Butler,
296 Conn. 62, 76–77, 993 A.2d 970 (2010).
We also are mindful that ‘‘[q]uestions of whether to
believe or to disbelieve a competent witness are beyond
our review. As a reviewing court, we may not retry the
case or pass on the credibility of witnesses. . . . Our
review of factual determinations is limited to whether
those findings are clearly erroneous. . . . We must
defer to the [finder] of fact’s assessment of the credibil-
ity of the witnesses that is made on the basis of its
firsthand observation of their conduct, demeanor and
attitude.’’ (Internal quotation marks omitted.) State v.
Pettigrew, 124 Conn. App. 9, 31, 3 A.3d 148, cert. denied,
299 Conn. 916, 10 A.3d 1052 (2010). Finally, we note that
in ‘‘reaching its conclusions, a jury may draw reasonable
and logical inferences from the facts proven, but it
may not resort to speculation and conjecture.’’ State v.
Jupin, 26 Conn. App. 331, 337, 602 A.2d 12, cert. denied,
221 Conn. 914, 603 A.2d 404 (1992); see also State v.
Smith, 185 Conn. 63, 71, 441 A.2d 84 (1981). Guided by
these principles, we turn to the specifics of the defen-
dant’s sufficiency claims.
A
The defendant first argues that there was insufficient
evidence to support his conviction for two counts of
assault of an elderly person in the first degree in viola-
tion of § 53a-59a. Specifically, he contends that there
was insufficient evidence that (1) he acted with the
intent to cause a physical injury to the victim as charged
in count one, or (2) he acted under circumstances evinc-
ing extreme indifference to human life, engaged in reck-
less conduct, or proximately caused the serious
physical injuries suffered by the victim. We disagree.
For the defendant properly to be convicted of vio-
lating § 53a-59a, the jury had to have found that he had
committed assault in the first degree under General
Statutes § 53a-59 (a) (5) and (3), and the victim had
attained at least sixty years of age. See General Statutes
§ 53a-59a (a); State v. Denby, 35 Conn. App. 609, 615–16,
646 A.2d 909 (1994) (§ 53a-59a provides for enhanced
penalty if defendant commits assault in first degree and
victim is sixty years of age or older), aff’d, 235 Conn.
477, 668 A.2d 682 (1995). Subdivisions (5) and (3) of
the cross-referenced statute, § 53a-59 (a), provide in
relevant parts: ‘‘A person is guilty of assault in the first
degree when . . . (5) with intent to cause physical
injury to another person, he causes such injury to such
person or to a third person by means of the discharge
of a firearm’’ or ‘‘(3) under circumstances evincing an
extreme indifference to human life he recklessly
engages in conduct which creates a risk of death to
another person, and thereby causes serious physical
injury to another person . . . . ’’ See, e.g., State v.
Bivrell, 116 Conn. App. 556, 560, 976 A.2d 60 (2009),
cert. denied, 295 Conn. 913, 990 A.2d 345 (2010).
1
Count one of the information charged the defendant
with violating subdivision (5) of the assault in the first
degree statute with respect to the elderly victim. The
defendant claims that there was insufficient evidence
that he intentionally fired the gun and did so with the
intent that it would cause physical injury to the victim.
The defendant relies on the evidence that ‘‘the gun went
off during a struggle initiated by [the victim] to control
the gun.’’
The defendant ignores the other evidence presented
by the state during the trial that supported his convic-
tion under count one. The defendant and the victim
had argued just prior to the shooting. LeBron testified
that the defendant had wanted to ‘‘start a fight,’’ and,
after someone had suggested calling the police, the
defendant responded that ‘‘he didn’t need the cops.’’
LeBron further testified that following the conclusion
of the verbal argument, the defendant reached into the
cabinet, ‘‘racked the gun,’’ and turned toward and shot
the victim. Haywood stated that the victim moved
toward the defendant, who then shot the victim.10 After
the victim stopped moving, the defendant pointed the
gun at the victim’s head and stated that he had ‘‘one
more bullet in the gun,’’ and threatened to kill the victim.
‘‘Assault in the first degree is a specific intent crime.
. . . It requires that the criminal actor possess the spe-
cific intent to cause physical injury to another person.’’
(Citation omitted; internal quotation marks omitted.)
State v. LaFountain, 127 Conn. App. 819, 828, 16 A.3d
761, cert. denied, 301 Conn. 921, 22 A.3d 1281 (2011);
see also State v. Murray, 254 Conn. 472, 479, 757 A.2d
578 (2000). General Statutes § 53a-3 (11) provides in
relevant part that ‘‘[a] person acts ‘intentionally’ with
respect to a result . . . described by a statute defining
an offense when his conscious objective is to cause
such result . . . .’’
‘‘It is well established that the question of intent is
purely a question of fact. . . . Intent may be, and usu-
ally is, inferred from the defendant’s verbal or physical
conduct. . . . Intent may also be inferred from the sur-
rounding circumstances. . . . The use of inferences
based on circumstantial evidence is necessary because
direct evidence of the accused’s state of mind is rarely
available. . . . Intent may be gleaned from circum-
stantial evidence such as the type of weapon used, the
manner in which it was used, the type of wound inflicted
and the events leading up to and immediately following
the incident. . . . Furthermore, it is a permissible,
albeit not a necessary or mandatory, inference that a
defendant intended the natural consequences of his
voluntary conduct.’’ (Internal quotation marks omitted.)
State v. Salaman, 97 Conn. App. 670, 677, 905 A.2d 739,
cert. denied, 280 Conn. 942, 912 A.2d 478 (2006).
The evidence was sufficient for the jury to conclude
that the defendant intended to cause physical injury11
to the victim. As previously noted, the jury was free
to consider the circumstances of the argument that
preceded the shooting of the victim. Specifically, it
could have credited the testimony that the disagreement
between the parties had concluded before the defen-
dant retrieved the gun and shot the victim. Furthermore,
the jury could have discredited the defendant’s version
of the events.12 Finally, the jury could have believed the
testimony of LeBron and Haywood that the defendant
removed the gun from the cabinet, pointed it at the
victim, and fired it. See State v. Victor C., 145 Conn.
App. 54, 61, 75 A.3d 48 (jury may find defendant guilty
based on testimony of one witness), cert. denied, 310
Conn. 933, 78 A.3d 859 (2013); State v. Madore, 96 Conn.
App. 271, 283 n.12, 900 A.2d 64, 73 (same), cert. denied,
280 Conn. 907, 907 A.2d 93 (2006). The act of pointing
a gun at a victim and pulling the trigger13 is sufficient
evidence of the specific intent required under § 53a-59.
See, e.g., State v. Washington, 15 Conn. App. 704, 716,
546 A.2d 911 (1988). We conclude, therefore, that the
defendant’s conviction of the crime of assault of an
elderly person in the first degree as charged in count one
of the information is supported by sufficient evidence.
2
Count two of the information charged the defendant
with violating subdivision (3) of the assault in the first
degree statute with respect to the elderly victim. Specifi-
cally, he contends that there was insufficient evidence
that ‘‘he acted ‘under circumstances evincing extreme
indifference to human life,’ ’’ that he engaged in reckless
conduct, and that his conduct was the proximate cause
of the victim’s injuries. Stated another way, the defen-
dant contends that ‘‘[t]he evidence does not show that
the defendant wielded—or got a chance to wield—the
gun in a reckless manner, much less under circum-
stances evincing extreme indifference to human life.’’
The defendant’s arguments again are founded on only
a portion of the evidence heard by the jury, namely,
that the victim initiated a struggle for possession of the
gun, and at some point the gun discharged. We are
not persuaded.
‘‘To establish that the defendant was guilty of assault
in the first degree in violation of § 53a-59 (a) (3), the
state was required to prove beyond a reasonable doubt
that the defendant, under circumstances evincing an
extreme indifference to human life, recklessly engaged
in conduct that created a risk of death to [the victim]
and thereby caused serious physical injury to the [vic-
tim]. . . . The risk of death element of the statute
focuses on the conduct of the defendant, not on the
resulting injury to the victim.’’14 (Citation omitted; inter-
nal quotation marks omitted.) State v. Holmes, 90 Conn.
App. 544, 547, 877 A.2d 826, cert. denied, 275 Conn. 927,
883 A.2d 1250 (2005); see also State v. Pearson, 97 Conn.
App. 414, 421, 904 A.2d 1259, cert. denied, 280 Conn.
934, 909 A.2d 963 (2006).
‘‘A person acts recklessly with respect to a particular
result or a circumstance described by a statute when
he is aware of and consciously disregards a substantial
and unjustifiable risk that such result will occur or that
such circumstance exists. . . . Recklessness involves
a subjective realization of that risk and a conscious
decision to ignore it. . . . It does not involve inten-
tional conduct because one who acts recklessly does
not have a conscious objective to cause a particular
result.’’ (Citations omitted; internal quotation marks
omitted.) State v. Jupin, supra, 26 Conn. App. 340; see
also State v. Pearson, supra, 97 Conn. App. 421.
Viewing the evidence in a light most favorable to
sustaining the verdict, the jury reasonably could have
found that the defendant violated § 53a-59 (a) (3). Hay-
wood stated during cross-examination that after the
defendant removed the gun from the cabinet, the victim
went toward the defendant and was ‘‘right up on [him].’’
The victim did not touch the gun, but was able to grab
the defendant’s shirt. At this point, the defendant, who
had served in the military and knew the type of physical
injuries that guns can cause, shot the victim. As a result
of the shooting, the victim sustained damage to his
intestine and colon. Absent medical intervention, he
likely would have died as a result of these serious physi-
cal injuries. This sequence of events provides the evi-
dentiary basis to sustain the defendant’s conviction for
violating § 53a-59 (a) (3). We therefore reject the defen-
dant’s arguments with respect to his conviction for
assault of an elderly person in the first degree as
charged in count two of the state’s information.
B
The defendant next argues that there was insufficient
evidence to support his conviction for reckless endan-
germent in the first degree in violation of § 53a-63 (a).
Specifically, he contends that the act of arming himself15
for the purpose of self-protection cannot ‘‘ ‘evince
extreme indifference to human life’ ’’ as required for a
conviction under this statute. We are not persuaded.
‘‘Section 53a-63 (a) provides: A person is guilty of
reckless endangerment in the first degree when, with
extreme indifference to human life, he recklessly
engages in conduct which creates a risk of serious phys-
ical injury to another person. According to General Stat-
utes § 53a-3 (13), [a] person acts recklessly with respect
to a result or to a circumstance described by a statute
defining an offense when he is aware of and consciously
disregards a substantial and unjustifiable risk that such
result will occur or that such circumstance exists. The
risk must be of such nature and degree that disregarding
it constitutes a gross deviation from the standard of
conduct that a reasonable person would observe in the
situation . . . . In determining whether a defendant
has acted recklessly for purposes of § 53a-63 (a), [s]ub-
jective realization of a risk may be inferred from [the
defendant’s] words and conduct when viewed in the
light of the surrounding circumstances.’’ (Internal quo-
tation marks omitted.) State v. Carter, 141 Conn. App.
377, 393, 61 A.3d 1103, cert. granted on other grounds,
308 Conn. 943, 66 A.3d 886 (2013); see also State v.
Douglas, 126 Conn. App. 192, 207–208, 11 A.3d 699
(2011).
We conclude that the evidence was sufficient to sup-
port the defendant’s conviction for reckless endanger-
ment in the first degree. The jury was free to credit the
testimony that the defendant removed the gun from the
cabinet, placed a bullet into the chamber, and shot the
victim, thereby creating a risk of serious physical injury
and in fact seriously injuring the victim. LeBron, Green,
and Haywood all were in close proximity to this indoor
shooting.16 The jury also heard testimony regarding the
velocity of a bullet exiting the barrel of the defendant’s
gun, the distance the bullet could travel and that it
could be deflected if it struck something other than
the shooter’s intended target. This evidence supports
a finding that the defendant displayed an extreme indif-
ference to human life. Mindful that on appeal we do
not ask whether there is a reasonable view of the evi-
dence that would support a reasonable hypothesis of
innocence, but, instead, we ask whether there is a rea-
sonable view of the evidence that supports the trier of
fact’s verdict of guilty; see State v. Silva, 285 Conn. 447,
459, 939 A.2d 581 (2008); we are not persuaded by the
defendant’s argument regarding his conviction for reck-
less endangerment in the first degree.
C
The defendant next argues that there was insufficient
evidence to support his conviction for risk of injury to
a child in violation of § 53-21 (a) (1). Specifically, he
contends that the act of removing a gun from the cabinet
for the purpose of defending himself and his child does
not provide the necessary factual predicate to sustain
his conviction for violating § 53a-21 (a) (1). We again
conclude that the defendant’s restricted view of the
evidence ignores facts that the jury reasonably could
have found that support his conviction.
Section 53-21 (a) provides in relevant part: ‘‘Any per-
son who (1) wilfully or unlawfully causes or permits
any child under the age of sixteen years to be placed
in such a situation that the life or limb of such child is
endangered, the health of such child is likely to be
injured or the morals of such child are likely to be
impaired, or does any act likely to impair the health or
morals of any such child . . . shall be guilty of a class
C felony . . . .’’ ‘‘Although it is clear that [t]he general
purpose of § 53-21 is to protect the physical and psycho-
logical well-being of children from the potentially harm-
ful conduct of [others] . . . we long have recognized
that subdivision (1) of § 53-21 prohibits two different
types of behavior: (1) deliberate indifference to, acqui-
escence in, or the creation of situations inimical to the
[child’s] moral or physical welfare . . . and (2) acts
directly perpetrated on the person of the [child] and
injurious to his [or her] moral or physical well-being.
. . . Cases construing § 53-21 have emphasized this
clear separation between the two parts of the statute
. . . .’’ (Citations omitted; emphasis in original; foot-
note omitted; internal quotation marks omitted.) State
v. Robert H., 273 Conn. 56, 65, 866 A.2d 1255 (2005).
We also note that our Supreme Court has stated that
‘‘the term ‘health,’ as used in the ‘health is likely to be
injured’ language of § 53-21, includes mental health as
well as physical health.’’ State v. Scruggs, 279 Conn.
698, 713–14, 905 A.2d 24 (2006).
Furthermore, we note that ‘‘in addressing a challenge
to a finding that the conduct of the accused had caused
psychological harm to a child in violation of § 53-21,
[our Supreme Court] recently observed that the fact
finder is not required to make a determination as to
the precise nature or severity of the injury . . . rather,
the fact finder need only decide whether the accused
placed the child in a situation that was likely to be
psychologically injurious to that child.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Gewily,
280 Conn. 660, 668–69, 911 A.2d 293 (2006).
The defendant contends in his appellate brief that
the evidence at trial did not show that he acted wilfully
or that his conduct demonstrated a reckless disregard
of the consequences of his actions. This court has
explained the mental state required to sustain a convic-
tion under this statute. ‘‘Conduct is wilful when done
purposefully and with knowledge of [its] likely conse-
quences. . . . Specific intent is not a necessary require-
ment of [§ 53-21]. Rather, the intent to do some act
coupled with a reckless disregard of the consequences
. . . of that act is sufficient to [establish] a violation
of the statute.’’ (Citation omitted; internal quotation
marks omitted.) State v. Patterson, 131 Conn. App. 65,
76, 27 A.3d 374 (2011), aff’d, 308 Conn. 835, 68 A.3d
83 (2013).
As noted previously, the state produced evidence that
the defendant removed a gun from the cabinet and shot
the victim at close range. The defendant then pointed
the gun at the victim’s head and threatened to kill him.
The child was crying in the adjacent room after the
shooting stopped. The child loudly asked the defendant
not to shoot the gun when he had it pointed at the
victim’s head.17 She then ran to the defendant, who
picked her up and walked out of the room. On the basis
of these facts, we conclude that sufficient evidence
was presented to the jury to support the conviction for
violating the situational prong of the risk of injury to
a child statute. The jury was free to determine that the
defendant’s shooting and threatening of the victim in
the presence of the child created a risk of harm to the
mental health of the child.18 See State v. Smalls, 78
Conn. App. 535, 547, 827 A.2d 784, cert. denied, 266
Conn. 931, 837 A.2d 806 (2003).
D
The defendant’s final sufficiency argument is that
the justification defense was not disproven beyond a
reasonable doubt by the state.19 Specifically, he con-
tends that the victim’s testimony did not provide the
jury with a basis for disproving his claim of self-defense,
and, therefore, he is entitled to an acquittal on all
counts. We disagree.
We begin by setting forth the applicable legal princi-
ples regarding self-defense. Self-defense is a justifica-
tion defense. State v. Bryan, 307 Conn. 823, 832, 60
A.3d 246 (2013). Justification defenses ‘‘operate to
exempt from punishment otherwise criminal conduct
when the harm from such conduct is deemed to be
outweighed by the need to avoid an even greater harm
or to further a greater societal interest. . . . Thus, con-
duct that is found to be justified is, under the circum-
stances, not criminal.’’ (Internal quotation marks
omitted.) Id., 832–33.
Under our Penal Code, self-defense is not an affirma-
tive defense. See State v. Singleton, 292 Conn. 734, 747,
974 A.2d 679 (2009); see also State v. Revels, 313 Conn.
762, 778, A.3d (2014). The state acknowledges
that the defendant met his burden of production in
this case, and, therefore, the state had to disprove self-
defense beyond a reasonable doubt. See General Stat-
utes § 53a-12 (a); State v. Clark, 264 Conn. 723, 730–31,
826 A.2d 128 (2003). General Statutes § 53a-19 (a) pro-
vides in relevant part that ‘‘[a] person is justified in
using reasonable physical force upon another person
to defend himself or a third person from what he reason-
ably believes to be the use or imminent use of physical
force, and he may use such degree of force which he
reasonably believes to be necessary for such purpose;
except that deadly physical force may not be used
unless the actor reasonably believes that such other
person is (1) using or about to use deadly physical
force, or (2) inflicting or about to inflict great bodily
harm.’’ Our Supreme Court has instructed that ‘‘the test
a jury must apply in analyzing the second requirement,
i.e., that the defendant reasonably believed that deadly
force, as opposed to some lesser degree of force, was
necessary to repel the victim’s alleged attack, is a sub-
jective-objective one. The jury must view the situation
from the perspective of the defendant. Section 53a-
19 (a) requires, however, that the defendant’s belief
ultimately must be found to be reasonable.’’ (Internal
quotation marks omitted.) State v. Revels, supra, 779.
We examine the defendant’s theory of self-defense
in order to determine if the state met its burden of
disproving it beyond a reasonable doubt. See id. The
defendant testified to the following. He stated that when
he asked the victim to leave so that lunch could be
prepared for his child, the victim ‘‘became angry and
hostile’’ and used ‘‘a lot of profanity’’ while holding the
ratchet wrench. The child, who was standing next to
the defendant, became scared. He told the child to go
into another room and to close the door, which she
did. The defendant walked past the victim, who was
gesturing at him, and went to the cabinet. The defendant
retrieved the gun, turned and faced the victim, and
asked him to leave.
The victim, after throwing a chair into the living room,
charged at the defendant with the ratchet wrench held
over his head. A struggle ensued over the gun. The
defendant was afraid that the victim would cause him
serious bodily harm. During this struggle, the gun fired
twice. The victim was wounded by the gunshots and
fell to the floor. As the defendant walked away, the
victim struck him twice in the left ankle with the ratchet
wrench. The defendant then threatened to shoot the
victim with the gun.
Although this testimony was sufficient to meet the
defendant’s burden of production, it was not the only
evidence before the jury for its consideration of this
defense. As noted previously, on the basis of the testi-
mony of LeBron and Haywood, the jury reasonably
could have found that the defendant and victim had
had a verbal confrontation, which had concluded, and
that thereafter, the defendant retrieved a gun from the
cabinet and shot the victim. The jury, as the finder of
fact, was free to discredit the defendant’s version of
events20 and to credit the testimony of the other individ-
uals present during the encounter. On the basis of this
evidence, we conclude that the jury reasonably could
have found that the state met its burden of disproving
the defendant’s claim of self-defense beyond a reason-
able doubt.
II
The defendant next claims that his right to due pro-
cess was violated as a result of prosecutorial impropri-
ety. Specifically, he argues that several statements made
by the prosecutor during rebuttal closing argument to
the jury were improper and deprived the defendant of
his right to a fair trial. We disagree.
We begin our analysis by setting forth the relevant
legal principles that guide our analysis. ‘‘In analyzing
claims of prosecutorial impropriety, we engage in a two
step process. . . . The two steps are separate and dis-
tinct: (1) whether [an impropriety] occurred in the first
instance; and (2) whether that [impropriety] deprived
a defendant of his due process right to a fair trial. Put
differently, [impropriety] is [impropriety], regardless of
its ultimate effect on the fairness of the trial; whether
that [impropriety] [was harmful and thus] caused or
contributed to a due process violation is a separate and
distinct question . . . . We note that [w]hen a defen-
dant raises on appeal a claim that improper remarks
by the prosecutor deprived the defendant of his consti-
tutional right to a fair trial, the burden is on the defen-
dant to show, not only that the remarks were improper,
but also that, considered in light of the whole trial, the
improprieties were so egregious that they amounted to
a denial of due process.’’ (Citations omitted; internal
quotation marks omitted.) State v. Maner, 147 Conn.
App. 761, 783, 83 A.3d 1182, cert. denied, 311 Conn. 935,
88 A.3d 550 (2014); see also State v. Andrews, 313 Conn.
266, 279, 96 A.3d 1199 (2014).
Our Supreme Court has indicated that the ‘‘determi-
nation of whether any improper conduct by the [prose-
cutor] violated the defendant’s fair trial rights is
predicated on the factors set forth in State v. Williams,
[204 Conn. 523, 540, 529 A.2d 653 (1987)], with due
consideration of whether that [impropriety] was
objected to at trial. . . . These factors include the
extent to which the [impropriety] was invited by
defense conduct or argument, the severity of the [impro-
priety], the frequency of the [impropriety], the centrality
of the [impropriety] to the critical issues in the case,
the strength of the curative measures adopted, and the
strength of the state’s case.’’ (Citation omitted; internal
quotation marks omitted.) State v. Grant, 286 Conn.
499, 536–37, 944 A.2d 947, cert. denied, 555 U.S. 916,
129 S. Ct. 271, 172 L. Ed. 2d 200 (2008).
‘‘[P]rosecutorial [impropriety] of a constitutional
magnitude can [also] occur in the course of closing
arguments. . . . [T]he prosecutor has a heightened
duty to avoid argument that strays from the evidence
or diverts the jury’s attention from the facts of the case.
[The prosecutor] is not only an officer of the court,
like every attorney, but is also a high public officer,
representing the people of the [s]tate, who seek[s]
impartial justice for the guilty as much as for the inno-
cent. . . . By reason of his office, he usually exercises
great influence [over] jurors. His conduct and language
in the trial of cases in which human life or liberty [is]
at stake should be forceful, but fair, because he repre-
sents the public interest, which demands no victim and
asks no conviction through the aid of passion, prejudice,
or resentment. If the accused [is] guilty, he should
[nonetheless] be convicted only after a fair trial, con-
ducted strictly according to the sound and well-estab-
lished rules [that] the laws prescribe. While the privilege
of counsel in addressing the jury should not be too
closely narrowed or unduly hampered, it must never
be used as a license to state, or to comment [on], or
to suggest an inference from, facts not in evidence,
or to present matters [that] the jury ha[s] no right to
consider. . . .
‘‘When making closing arguments to the jury, [how-
ever] [c]ounsel must be allowed a generous latitude in
argument, as the limits of legitimate argument and fair
comment cannot be determined precisely by rule and
line, and something must be allowed for the zeal of
counsel in the heat of argument. . . . Thus, as the
state’s advocate, a prosecutor may argue the state’s
case forcefully, [provided the argument is] fair and
based [on] the facts in evidence and the reasonable
inferences to be drawn therefrom. . . . Moreover, [i]t
does not follow . . . that every use of rhetorical lan-
guage or device [by the prosecutor] is improper. . . .
The occasional use of rhetorical devices is simply fair
argument.’’ (Citations omitted; internal quotation marks
omitted.) State v. Albino, 312 Conn. 763, 795–96, 97
A.3d 478 (2014); see also State v. Ross, 151 Conn. App.
687, 693–94, 95 A.3d 1208 (2014). Simply put, ‘‘[w]hile
[the prosecutor] may strike hard blows, he is not at
liberty to strike foul ones.’’ (Internal quotation marks
omitted.) State v. Andrews, supra, 313 Conn. 294.
Guided by these principles, we address the specific
claims of impropriety raised in the defendant’s appeal.
A
The prosecutor began his rebuttal argument by noting
that defense counsel had presented his view of the case
during closing argument. The prosecutor then stated
that the case was ‘‘not about the arguments of counsel.
It is particularly not about—and there’s good reason
for that. The law doesn’t want you folks to base your
decision on who is the better orator or who is the more
skilled wordsmith. It certainly doesn’t want you to base
your decision on assertions of counsel, particularly,
and I would claim it’s inappropriate, where there is
testimony on the part of an attorney.’’ The prosecutor
then referred to a statement made by defense counsel
regarding two cartridges21 and described that comment
as ‘‘inappropriate.’’22 Defense counsel objected to this
statement by the prosecutor.23 The court ruled that the
prosecutor’s remark was ‘‘appropriate.’’ The prosecutor
then stated: ‘‘You may—here lies the evidence to draw
inferences and conclusions, but that’s for your to decide
what evidence does or does not bear on it. It is not for
counsel to state that he, in fact—to comment upon the
credibility or the right or wrong testimony of a witness.
It’s not about the question asked by attorneys. Ques-
tions, the court is going to tell you, are not evidence.’’
On appeal, the defendant argues that it both was
incorrect and improper for the prosecutor to challenge
the propriety of defense counsel’s closing argument
to the jury. He further contends that the prosecutor
distracted the jury with the issue of ‘‘improper lawyer-
ing’’ by defense counsel, and that the prosecutor, rather
than the court, commented on the propriety of the state-
ments of defense counsel.24 We conclude that the defen-
dant has failed to carry his burden to show that the
prosecutor’s comments were improper.
1
The prosecutor and defense counsel expressed a dif-
ference of opinion as to whether certain comments
made during defense counsel’s closing argument were
supported by the evidence or amounted to unsworn
testimony. It would be improper for defense counsel
to comment on facts that were not in evidence. See
State v. Giordano-Lanza, 83 Conn. App. 811, 814, 851
A.2d 397, cert. granted on other grounds, 271 Conn.
911, 859 A.2d 572 (2004) (appeal dismissed as moot
October 25, 2005). Further, the prosecutor’s statement
was made in the context of reviewing the evidence that
was before the jury. ‘‘As an advocate, the [prosecutor]
may permissibly employ forceful arguments based upon
the facts in evidence and the reasonable inferences
drawn from such facts.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Tate, 85 Conn. App.
365, 374, 857 A.2d 394, cert. denied, 272 Conn. 901,
863 A.2d 696 (2004). Finally, we note that the court
instructed the jury that the statements made during
closing arguments were ‘‘intended to help [the jurors]
interpret the evidence, but [they were] not evidence. If
the facts as you remember them differ from the way
the lawyers have stated them, it’s your memory that
controls.’’ We are not persuaded that the prosecutor’s
assertions, in which he stated that the comments made
by defense counsel were not supported by the evidence,
amounted to prosecutorial impropriety.
2
The defendant next contends that the prosecutor
improperly distracted the jury with the issue of whether
defense counsel had engaged in improper lawyering.
We have observed that ‘‘[t]he prosecutor is expected to
refrain from impugning, directly or through implication,
the integrity or institutional role of defense counsel.
. . . There is a distinction [however] between argu-
ment that disparages the integrity or role of defense
counsel and argument that disparages a theory of
defense. . . . Moreover, not every use of rhetorical lan-
guage is improper. . . . There is ample room, in the
heat of argument, for the prosecutor to challenge vigor-
ously the arguments made by defense counsel.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Dearing, 133 Conn. App. 332, 352, 34 A.3d 1031, cert.
denied, 304 Conn. 913, 40 A.3d 319 (2012).
We do not view the comments of the prosecutor as
improper. The challenged comments, when considered
in context, appear to have been made in an effort to
keep the jury focused on the evidence rather than the
comments of the attorneys. See State v. Holley, 144
Conn. App. 558, 573, 72 A.3d 1279, cert. denied, 310
Conn 946, 80 A.3d 907 (2013). Additionally, ‘‘[w]e do
not assume that every statement made by the prosecu-
tor was intended to have its most damaging meaning.’’
State v. Dearborn, 82 Conn. App. 734, 749, 846 A.2d
894, cert. denied, 270 Conn. 904, 853 A.2d 523 (2004);
see also State v. Ciullo, 314 Conn. 28, 48, 100 A.3d
779 (2014).
B
The defendant next argues that the prosecutor invited
the jury to decide the ultimate issues in the case on the
basis of whether the state’s witnesses or the defendant
was more credible. The defendant contends that the
prosecutor’s remarks were an improper attempt to
dilute the state’s burden of proof. The defendant notes
that the jury could find the defendant’s story to be less
credible, and yet find him not guilty if it determined
that the state had failed to meet its burden to prove
each element of the crimes charged beyond a reason-
able doubt. We are not convinced.
During his rebuttal argument, the prosecutor stated:
‘‘And while [defense] counsel to some degree tries to
posit this case as insufficient evidence through the bur-
den of proof, posits this case that is a case about self-
defense. I would submit to you . . . that what this case
is really about is not self-defense, it’s not about lesser
included offenses. It’s about credibility. Really about
who you believe. I would submit to you that the evi-
dence upon your review is going to establish that there
are pretty distinct contradictions between several of
the witnesses [who] were parties to that incident, [the
victim, LeBron, and Haywood] versus the version of
events provided to you this morning by this defendant.
I would submit to you that they lie in stark contrast
with one another, and I would submit to you . . . if
you do not believe the defendant as versus the other
individuals who witnessed this matter and that you find
them credible, then I submit your decision here should
be an easy one.’’
Our Supreme Court has instructed that ‘‘prosecutors
are not permitted to misstate the law . . . and sugges-
tions that distort the government’s burden of proof are
likewise improper . . . because such statements are
likely to improperly mislead the jury.’’ (Citations omit-
ted.) State v. Otto, 305 Conn. 51, 77, 43 A.3d 629 (2012).
After reviewing the record, we conclude, however, that
the prosecutor in this case did not make a suggestion
that distorted the state’s burden of proof.
We note that at the outset of his remarks to the jury,
the prosecutor stated that the jury should follow the
court’s instructions on the law.25 Additionally, defense
counsel argued that the jury should consider the lesser
included offenses and the justification defense of self-
defense in reaching a verdict. It is clear that the prosecu-
tor’s remarks regarding those two topics were made in
response to those of defense counsel, which is proper
argument. See State v. Brown, 256 Conn. 291, 309, 772
A.2d 1107 (‘‘[w]hen a prosecutor’s allegedly improper
argument is in direct response to matters raised by
defense counsel, the defendant has no grounds for com-
plaint’’), cert. denied, 534 U.S. 1068, 122 S. Ct. 670, 151
L. Ed. 2d 584 (2001). Finally, the remarks in the present
case are similar to those made in State v. Edward M.,
135 Conn. App. 402, 420 n.12, 41 A.3d 1165, cert. denied,
305 Conn. 914, 46 A.3d 172 (2012), where the prosecutor
argued: ‘‘This case is what we call in the law something
that is a credibility contest. On the one hand you have
the state’s witnesses, on the other hand you have the
defense. There is a complete denial from the defense.’’
(Internal quotation marks omitted.) In distinguishing
those comments from the ones made in State v. Singh,
259 Conn. 693, 712, 793 A.2d 226 (2002),26 we stated:
‘‘Rather, the prosecutor merely argued the unremark-
able proposition that the present case, with its lack
of physical evidence, necessarily required the jury to
carefully weigh the witnesses’ credibility . . . .’’ State
v. Edward M., supra, 421. In the present case, the prose-
cutor asked the jury to focus on the key question of
the credibility of the witnesses and whose version of
the event to believe in order to determine whether the
defendant had committed the crimes with which he
was charged. In this context, we conclude that this
argument was proper.
C
The defendant next argues that the prosecutor
improperly argued that it was unreasonable for him not
to retreat from the victim. He appears to contend further
that this argument was contrary to the ruling of the
court that the defendant did not have any obligation to
retreat. We are not persuaded.
The following additional facts are necessary for our
discussion. Outside of the presence of the jury, the
court noted that during the charging conference, an
issue had arisen regarding whether the defendant had
a duty to retreat because the incident had occurred
in his dwelling.27 The court stated: ‘‘I don’t think the
evidence here is in dispute that [the defendant] was a
tenant and [had] a right to occupy the property. So
anyway, I didn’t know if the state in reflection would
have a chance to look at it. It would be my suggestion
that we just delete the duty to retreat as one of the
circumstances.’’ The prosecutor noted his agreement
with the court not to charge the jury on the duty to
retreat.
During his closing argument to the jury, defense coun-
sel encouraged the jury to listen to the court’s instruc-
tions on self-defense. Later, he argued: ‘‘Now you heard
the state ask the defendant, why didn’t you just leave.
He has no duty to leave. It’s his place. He can stay.’’
Thereafter, defense counsel iterated that the defendant
did not have a responsibility to leave.
During rebuttal argument to the jury, the prosecutor
responded to these comments. ‘‘I’d ask you to keep in
mind in [evaluating the witnesses’ testimony] a key
principle that I would submit applies in a number of
concepts in this case. And [it] was actually, I think
[defense] counsel mentioned it very, very briefly, rea-
sonableness. In evaluating testimony of any witness,
ask yourself, does it make sense to you based upon
your own experiences, life experiences, things that
you’ve dealt with. Does it seem, reasonable to you.’’
After arguing that the defendant’s version of the events
was not credible, he turned to the question of whether
the actions of the defendant following the initial verbal
altercation with the victim were reasonable. First, the
prosecutor asserted that the defendant’s act of retriev-
ing the gun from the cabinet, rather than calling the
police or any other step available, was not reasonable.
The prosecutor then stated that the jury would be
instructed by the court on the objective component of
self-defense, and that the defendant’s actions were not
objectively reasonable. Specifically, he argued: ‘‘And
ask yourself that if the defendant is so concerned that
[the victim] is going to use physical force on him, he’s
going to take that ratchet and hit him upside the F’ing
head, that rather than turn and walk right by the party
who was wheeling that ratchet according to the him,
instead of doing that, instead of turning around, heading
towards a phone and calling the police, leaving the
apartment—I’m not saying he had a duty to do it, but
wouldn’t that have been reasonable given what was
going on, to do that if that’s what he believed. But ladies
and gentleman, that’s not reasonable in terms of what
the facts of this case have shown.’’ (Emphasis added.)
The prosecutor then asked if it was reasonable for the
defendant to feel in imminent physical danger and
whether such a belief was reasonable given the respec-
tive ages and physical condition of the defendant and
the victim.
After the arguments to the jury had concluded,
defense counsel raised several objections, including
that the prosecutor had commented improperly on the
duty to retreat. ‘‘I understand Your honor is not going
to give a duty to retreat [charge] and that was a discus-
sion that we had in chambers. However, on at least
four occasions, the [prosecutor] kept speaking about
why didn’t [the defendant] go into the other room. He
said wouldn’t that have been reasonable. The state is
aware that we aren’t going to charge on the duty to
retreat.’’ The prosecutor countered that his remarks
were in response to the arguments that defense counsel
had made, that he specifically had stated that the defen-
dant did not have a duty to retreat, and that his argu-
ments had applied to the reasonableness of the
defendant’s actions as related to the claim of self-
defense. The court overruled the objections raised by
defense counsel.28
We conclude that the prosecutor’s remarks were
proper for several reasons. First, they were made in
response to the argument of defense counsel. Second,
the remarks correctly noted that the defendant did not
have a duty to retreat and that the jury should consider
whether his actions were objectively reasonable.
Finally, his comments served to advance the state’s
theory that the defendant’s shooting of the victim was
unreasonable. See State v. Dawes, 122 Conn. App. 303,
323, 999 A.2d 794, cert. denied, 298 Conn. 912, 4 A.3d
834 (2010). Specificially, the prosecutor noted that the
defendant, rather than taking steps to remove himself
and his daughter from a dangerous situation, instead
chose to retrieve and use the handgun. The prosecutor
properly argued that these actions contradicted the
defendant’s testimony that he truly feared for his life.
D
We briefly discuss the defendant’s final claims of
prosecutorial impropriety. First, he contends that the
prosecutor improperly ‘‘miscast the case as one pitting
the jury’s evaluation of what [he] implied was the defen-
dant’s imaginary right to defend himself against [the
victim’s] actual right to defend himself . . . .’’ The
defendant’s argument is based on the following state-
ment made by the prosecutor: ‘‘Now listening to the
claims regarding self-defense by opposing counsel, it
almost seems he’s taken a page from Alice in Wonder-
land’s Looking Through the Looking Glass where up is
down and down is up. I submit to you that the evidence
here establishes that if anybody was justified in claiming
self-defense in this case, it was the [the victim] and
certainly not this defendant.’’29
The prosecutor’s comment that the victim, rather
than the defendant, had the right to defend himself, was
based on the evidence and, accordingly, was proper.
Further, as pointed out in the state’s brief, our appellate
courts have rejected arguments similar to those made
in the present case. See State v. Thompson, 266 Conn.
440, 463–65, 832 A.2d 626 (2003) (prosecutor’s com-
ments that characterized defendant’s version as fantasy
world akin to those encountered by Alice); State v.
Cotton, 77 Conn. App. 749, 774, 825 A.2d 189 (prosecu-
tor’s argument wherein reference was made to down
is up and up is down not improper), cert. denied, 265
Conn. 911, 831 A.2d 251 (2003). In concluding that these
remarks were proper, we note that our Supreme Court
has observed that ‘‘[t]he occasional use of rhetorical
devices is simply fair argument [and that] literary allu-
sions to Lewis Carroll’s topsy-turvy [amount to] rhetori-
cal flourish and not improper argument. (Citation
omitted; internal quotation marks omitted.) State v.
Thompson, supra, 464–65.
The defendant also argues that it was improper for
the prosecutor to ask the jury to ‘‘demonstrate to the
defendant . . . that you hold him accountable for his
conduct in the early afternoon hours of March 23, 2010
. . . by returning findings of guilty on each of the
charges with which he has been accused.’’ The defen-
dant claims that this remark distorted the jury’s role
from deciding the case on the evidence and controlling
law to a ‘‘remonstrance to the individual on trial.’’
The defendant’s claim ignores the context of the chal-
lenged remark. Immediately prior to the prosecutor’s
request that the jury hold the defendant accountable
for his conduct, he reminded the jurors of their obliga-
tions as jurors and asked that they ignore any sympathy
for the defendant or the victim. Further, the prosecutor
requested that they not be concerned about any possible
punishment and, instead, focus on the facts presented
during the trial. The prosecutor then argued that the
jurors not ‘‘shy away’’ from their responsibility and that
both the law and the evidence ‘‘provid[ed] the means’’
to fulfill their obligations. We agree with the state that
when viewed in context, the prosecutor asked the jury
to decide the case on the facts and law and to find
the defendant guilty because such a determination was
supported by the evidence. See, e.g., State v. Thompson,
supra, 266 Conn. 475; State v. Donald H. G., 148 Conn.
App. 398, 423, 84 A.3d 1216, cert. denied, 311 Conn. 951,
A.3d (2014). We conclude, therefore, that this
remark was not improper.
III
The defendant next claims that the court violated his
right to a fair trial by improperly denying his supplemen-
tal request to charge the jury. He asserts the state
‘‘opened the door’’ to the duty to retreat, and, therefore,
the court should have given the requested instruction.
We disagree.
The following additional facts are necessary for our
discussion. As previously noted, the court informed the
parties that it would not instruct the jury on the duty
to retreat because the defendant, as the tenant, had no
legal duty to retreat while in his dwelling. See General
Statutes § 53a-19 (b) (1). In his objection to the court’s
proposed instructions to the jury, defense counsel
requested that the court inform the jury that the defen-
dant did not have a duty to retreat in his dwelling.30 The
defendant submitted a written copy of his supplemental
request to charge, properly preserving the claim for
appellate review.31 See Practice Book § 16-20.
The prosecutor noted that he specifically had stated
that the defendant did not have a duty to retreat and
simply had commented on the reasonableness, or lack
thereof, of the defendant’s conduct relating to the claim
of self-defense. He further argued that the duty to
retreat charge was not necessary. The court concluded
that the requested charge would not be given to the jury.
We now set forth the relevant legal principles and
our standard of review with respect to this claim. ‘‘A
proper instruction on a recognized legal defense is of
constitutional magnitude. . . . Our standard of review
in cases in which the defendant claims that the instruc-
tions were constitutionally deficient is whether it is
reasonably possible that the instructions misled the
jury. . . . In assessing the claim, the jury charge must
be read as a whole, not in artificial isolation from the
overall charge. . . . The principal function of a jury
charge is to assist the jury in applying the law correctly
to the facts which [it] might find to be established
. . . .’’ (Citation omitted; internal quotation marks
omitted.) State v. Wright, 149 Conn. App. 758, 772, 89
A.3d 458, cert. denied, 312 Conn. 917, 94 A.3d 641 (2014);
see also State v. Lemoine, 256 Conn. 193, 198–99, 770
A.2d 491 (2001). Put another way, ‘‘we must consider
whether the instructions [in totality] are sufficiently
correct in law, adapted to the issues and ample for
the guidance of the jury.’’ (Internal quotation marks
omitted.) State v. Lavigne, 307 Conn. 592, 599–600, 57
A.3d 332 (2012); see State v. Kaddah, 250 Conn. 563,
579, 736 A.2d 902 (1999).
In the present case, the court properly instructed the
jury on self-defense. The defendant’s claim, however,
is that the court did not instruct on a particular aspect
of this defense, namely, that he had no duty to retreat
because the confrontation with the victim occurred in
the defendant’s dwelling. The defendant further claims
that this instruction was necessary following the prose-
cutor’s rebuttal closing argument to the jury. We
disagree.
During rebuttal closing argument, the prosecutor
explicitly stated that the defendant did not have a duty
to retreat. His remarks focused on whether the defen-
dant had acted reasonably, which is a significant part
of the calculus for the jury in determining whether an
actor had acted in self-defense. In other words, the
arguments presented by the prosecutor advanced the
state’s central theory that the defendant’s shooting of
the victim was unreasonable. See State v. Dawes, supra,
122 Conn. App. 323; see also State v. Lemoine, supra,
256 Conn. 199–201. It was unnecessary for the court to
instruct the jury on this particular exception to the duty
to retreat. The following rationale from our Supreme
Court is applicable to the present case: ‘‘To require that
the jury be instructed, not only on matters at issue, but
also on all arguably related but factually inapplicable
areas of the law not only would be impractical, but
would impair the jury’s understanding of the relevant
legal issues. . . . Such an instruction would have been
unnecessary and potentially confusing to the jury.’’
State v. Lemoine, supra, 201. We conclude, therefore,
that the court did not err when it declined to instruct
the jury in accordance with the defendant’s proposed
supplemental jury instruction.
IV
The defendant’s final claim is that his conviction and
sentencing for two counts of assault of an elderly person
in the first degree violated his constitutional right
against double jeopardy. Specifically, he argues that his
conviction under counts one and two of the information
is based on alternative ways of violating a single statu-
tory offense. He further contends that, pursuant to our
Supreme Court’s recent decision in State v. Polanco,
308 Conn. 242, 61 A.3d 1084 (2013), we should remand
the case for the imposition of a single sentence for
a single violation of the statute, and that the second
conviction be vacated. We agree with the state that the
two assault charges did not arise from the same act
or transaction, and, therefore, the defendant’s double
jeopardy claim must fail.
The defendant’s claim presents a question of law and
therefore, our review is plenary. State v. Brown, 299
Conn. 640, 650, 11 A.3d 663 (2011). ‘‘The double jeop-
ardy clause of the fifth amendment to the United States
constitution provides: [N]or shall any person be subject
for the same offense to be twice put in jeopardy of life
or limb. The double jeopardy clause [applies] to the
states through the due process clause of the fourteenth
amendment. . . . This constitutional guarantee pro-
hibits not only multiple trials for the same offense, but
also multiple punishments for the same offense in a
single trial.’’ (Internal quotation marks omitted.) State
v. Gonzalez, 302 Conn. 287, 315, 25 A.3d 648 (2011).
The defendant acknowledges that this claim was not
preserved and requests review pursuant to the Golding
doctrine. ‘‘Specifically, [State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989)] held that 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 clearly exists and
clearly 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. . . . [T]he first
two [prongs of Golding] involve a determination of
whether the claim is reviewable . . . and under those
two prongs, [t]he defendant bears the responsibility for
providing a record that is adequate for review of his
claim of constitutional error.’’ (Citations omitted; inter-
nal quotation marks omitted.) State v. Elson, 311 Conn.
726, 743–44, 91 A.3d 862 (2014). We note that the record
is adequate for review and the defendant’s double jeop-
ardy claim is of constitutional magnitude. See, e.g., State
v. Bernacki, 122 Conn. App. 399, 403, 998 A.2d 262
(2010), aff’d, 307 Conn. 1, 52 A.3d 605 (2012), cert.
denied, U.S. , 133 S. Ct. 1804, 185 L. Ed. 2d
811 (2013). We conclude, however, that the defendant’s
claim fails under the third Golding prong.
‘‘Double jeopardy prohibits multiple punishments for
the same offense in the context of a single trial. None-
theless, distinct repetitions of a prohibited act, however
closely they may follow each other . . . may be pun-
ished as separate crimes without offending the double
jeopardy clause. . . . The same transaction, in other
words, may constitute separate and distinct crimes
where it is susceptible of separation into parts, each
of which in itself constitutes a completed offense. . . .
[T]he test is not whether the criminal intent is one
and the same and inspiring the whole transaction, but
whether separate acts have been committed with the
requisite criminal intent and are such as are made pun-
ishable by the [statute]. (Citations omitted; internal quo-
tation marks omitted.) State v. Miranda, 260 Conn. 93,
122–23, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.
Ct. 224, 154 L. Ed. 2d 175 (2002); see also State v. Scott,
270 Conn 92, 99–100, 851 A.2d 291 (2004), cert. denied,
544 U.S. 987, 1255 S. Ct. 1861, 161 L. Ed. 2d 746 (2005);
State v. Antonio A., 90 Conn. App. 286, 293, 878 A.2d
358, cert. denied, 275 Conn. 926, 883 A.2d 1246 (2005),
cert. denied, 546 U.S. 1189, 126 S. Ct. 1373, 164 L. Ed.
2d 81 (2006).
Our analysis, therefore, is focused on whether the
two assault charges arose from the same act or transac-
tion. We conclude that the assault as charged in count
one of the information is a separate, distinct and com-
pleted crime from the assault as charged in count two.
Each was a separate act that was committed with the
requisite criminal intent, and, therefore, the defendant’s
double jeopardy claim must fail.
As previously noted, count one of the information
charged that the defendant, acting with the intent to
cause physical injury to another person, caused such
injury to a person who had attained at least sixty years
of age by means of the discharge of a firearm. In part
I A 1 of this opinion, we concluded that there was
sufficient evidence to sustain the defendant’s convic-
tion on the basis that he removed the handgun from
the cabinet, turned toward the victim, and shot him.
Count two of the information charged that the defen-
dant, under circumstances evincing an extreme indiffer-
ence to human life, recklessly engaged in conduct that
created a risk of death to another person and thereby
caused serious physical injury to a person who had
attained at least sixty years of age. In part I A 2 of
this opinion, we set forth the evidence supporting the
defendant’s conviction as charged in count two. Specifi-
cally, that the victim approached the defendant and
grabbed his shirt, and then the defendant shot the victim
for a second time. Because the acts that constituted
each of these crimes may be separated from the other,
the defendant constitutionally may be punished sepa-
rately for each offense. See State v. Brown, supra, 299
Conn. 650; cf. State v. Nixon, 92 Conn. App. 586, 591,
886 A.2d 475 (2005) (first part of double jeopardy analy-
sis met where defendant stabbed victim multiple times
with same common intent to inflict physical injury dur-
ing one continuous uninterrupted assault). The defen-
dant has failed to establish that a constitutional
violation clearly exists under the third prong of
Golding.
Finally, in his reply brief, the defendant argues that
pursuant to State v. King, 149 Conn. App. 361, 371, 87
A.3d 1193 (2014), the state should be precluded from
arguing that there were two separate and distinct crimes
because of the theory of the case doctrine. In King, we
noted that it was a violation of due process for an
appellate court to affirm a conviction on the basis of
a theory of the case that is inconsistent with that relied
upon by the state during the trial. Id., 373.
We conclude that King does not apply to the present
case. In King, the prosecutor never suggested that the
jury could find the defendant guilty of both intentional
and reckless conduct and, during closing argument,
‘‘presented the two charges to the jury as an alternative
to one another.’’ Id. The state also failed to present
evidence that distinguished the multiple stab wounds.
Id., 374. In the present case, the prosecutor did not
present the two assault charges as alternatives during
closing argument, and there was evidence distinguish-
ing the first gunshot, where the defendant pointed the
gun at the victim and fired, from the second, where
victim approached and grabbed the defendant’s shirt
before he was shot for the second time. We conclude,
therefore, that King is distinguishable from the present
case, and, therefore, we are not persuaded by the defen-
dant’s argument.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the victim or others through whom the
victim’s identity may be ascertained. See General Statutes § 54-86e.
1
‘‘As to any conflicting testimony provided by the state’s witnesses, we
follow the well established rule that we must defer to the jury’s assessment
of the credibility of the witnesses based on its firsthand observation of their
conduct, demeanor and attitude. . . . This court cannot substitute its own
judgment for that of the jury if there is sufficient evidence to support the
jury’s verdict. . . . When conflicting testimony is presented, the jury may
credit the testimony it finds believable. . . . Therefore, [t]he [jury] can . . .
decide what—all, none, or some—of a witness’ testimony to accept or
reject.’’ (Internal quotation marks omitted.) State v. Whitfield, 75 Conn. App.
201, 214 n.6, 815 A.2d 233, cert. denied, 263 Conn. 910, 819 A.2d 842 (2003);
see State v. Victor C., 145 Conn. App. 54, 61, 75 A.3d 48, cert. denied, 310
Conn. 933, 78 A.3d 859 (2013); see also State v. Rosado, 147 Conn. App.
688, 696, 83 A.3d 351 (evidence not insufficient because it is conflicting or
inconsistent), cert. denied, 311 Conn. 928, 86 A.3d 1058 (2014).
2
Although the defendant’s child also was a victim in this case; see part
I C of this opinion; we refer in this opinion to Douglas E. as the victim.
3
Green did not testify at the defendant’s trial. Robert Sage, an inspector
employed by the Office of the State’s Attorney, testified that despite repeated
efforts, he was unable to locate Green.
4
On cross-examination, the victim testified that he had stated: ‘‘I will hit
you with [the ratchet wrench] if you come over here.’’
5
Haywood testified that when the defendant walked past the victim and
went to a cabinet, he was ‘‘not concerned about anything at that point.’’
6
The investigation later revealed that the gun was a Colt semiautomatic
.32 caliber pistol.
7
LeBron testified that ‘‘racking a gun’’ means pulling back the top of the
gun causing a bullet to enter into the chamber so that it can be discharged.
8
We review sufficiency claims first due to the nature of the remedy. ‘‘We
begin with this issue because if the defendant prevails on the sufficiency
claim, [he] is entitled to a directed judgment of acquittal rather than to a
new trial.’’ State v. Moore, 100 Conn. App. 122, 126 n.2, 917 A.2d 564 (2007).
9
Even if the defendant had not preserved this claim, we still would review
it on appeal. ‘‘[Our Supreme Court has] observed that any defendant found
guilty on the basis of insufficient evidence has been deprived of a constitu-
tional right, and would therefore necessarily meet the four prongs of Golding.
. . . Accordingly, because there is no practical significance . . . for engag-
ing in a Golding analysis, we review an unpreserved sufficiency of the
evidence claim as though it had been preserved.’’ (Citation omitted; internal
quotation marks omitted.) State v. Revels, 313 Conn. 762, 777, A.3d
(2014).
10
During cross-examination, the defendant acknowledged that he was
‘‘very familiar’’ with guns and knew that they could cause serious physical
injury and death.
11
General Statutes § 53a-3 (3) provides in relevant part: ‘‘Physical injury
means impairment of physical condition or pain . . . .’’ (Internal quotation
marks omitted.)
12
As discussed in greater detail later in this opinion, the defendant testified
that he had retrieved the gun for the purpose of protecting himself and his
child. According to the defendant, the victim, after threatening him with
the ratchet wrench, charged at the defendant and initiated a physical strug-
gle. During this altercation, the gun accidently discharged, wounding the
victim.
It is axiomatic that ‘‘[a]s an appellate court, [w]e do not sit as a [seventh]
juror who may cast a vote against the verdict based upon our feeling that
some doubt of guilt is shown by the cold printed record. . . . Rather, we
must defer to the jury’s assessment of the credibility of the witnesses based
on its firsthand observation of their conduct, demeanor and attitude.’’ (Inter-
nal quotation marks omitted.) State v. Calabrese, 116 Conn. App. 112, 125,
975 A.2d 126, cert. denied, 293 Conn. 933, 981 A.2d 1076 (2009).
13
The jury also heard testimony that the defendant’s gun had two safety
features to prevent an accidental discharge. First, a ‘‘slide lock’’ that pre-
vented the slide from moving, and second, an external grip safety that
required the shooter to compress a piece of metal in order to pull the
trigger. Additionally, James Stephenson, a forensic scientist, testified that
the defendant’s gun did not have a ‘‘hair trigger,’’ and that pulling the trigger
required effort.
14
‘‘Serious physical injury means physical injury which creates a substan-
tial risk of death or which causes serious disfigurement, serious impairment
of health or serious loss or impairment of the function of any bodily organ
. . . .’’ (Internal quotation marks omitted.) General Statutes § 53a–3 (4).
15
The defendant notes that he has a federal and state constitutional right
to possess a loaded handgun in his home for the purposes of self-defense.
The second amendment to the United States constitution provides: ‘‘A well
regulated Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed.’’ Article first,
§ 15 of the Connecticut constitution provides: ‘‘Every citizen has a right
to bear arms in defense of himself and the state.’’ The exercise of these
constitutional rights, however, did not form the basis for the defendant’s
conviction. The defendant was not convicted for possessing a loaded hand-
gun in his home for the purpose of self-defense, but rather for engaging
in conduct that the jury determined not to be self-defense, but reckless
endangerment in the first degree.
16
During his closing argument to the jury, the prosecutor stated that the
defendant had recklessly endangered LeBron, Green, and Haywood.
17
Haywood testified that after the defendant had shot the victim, had
pointed the gun at the victim’s head and had threatened to kill him, the
child yelled at the victim from the threshold of the kitchen. After a hearing
outside of the presence of the jury, the court permitted Haywood to testify
as to what the child had said as an excited utterance exception to the rule
against hearsay. The court determined that the shooting in the apartment
constituted a startling occurrence, that the child had observed the startling
occurrence, and that her comments were caused by the startling occurrence,
thereby negating the opportunity for deliberation and fabrication. Haywood
then testified in front of the jury that the child was crying and yelled to the
defendant: ‘‘Daddy, don’t shoot that gun; Daddy, don’t shoot that gun.’’
18
Although the state presented evidence that the defendant’s conduct
created a risk of harm to the mental health of the child, we note that during
his closing argument, the prosecutor asked the jury to consider the relative
positions of the individuals during the shooting. He further stated that there
had been testimony regarding the speed of a bullet when fired from the
handgun and that a bullet could ricochet. He also argued that ‘‘grabbing a
loaded gun knowing full well what the potential for causing harm is, what
the risk intending to use that kind of weapon in these kind of circumstances
in a small area occupied by at least four individuals displayed an absolute
indifference to the harm that could result.’’ The prosecutor concluded that
the defendant had recklessly endangered LeBron, Green, and Haywood,
‘‘and at the same time put his own [child] at risk.’’ Finally, we note that
during his rebuttal argument, the prosecutor stated that ‘‘[p]eople indicate
that the [child] was in the room close to the threshold of the living room
and the kitchen yelling . . . daddy, don’t shoot, don’t shoot no more.’’
19
‘‘[T]he standard for reviewing sufficiency claims in conjunction with a
justification offered by the defense is the same standard used when examin-
ing claims of insufficiency of the evidence.’’ (Internal quotation marks omit-
ted.) State v. Marshall, 132 Conn. App. 718, 724, 33 A.3d 297 (2011), cert.
denied, 303 Conn. 933, 36 A.3d 693 (2012); State v. Skelly, 124 Conn. App.
161, 167, 3 A.3d 1064, cert. denied, 299 Conn. 909, 10 A.3d 526 (2010).
20
During his cross-examination by the state, the defendant acknowledged
that he did not tell the police officers investigating the shooting that he had
pointed the gun at the victim, who was bleeding and lying on the floor, and
threatened to ‘‘blow his brains out.’’
21
During his closing argument, defense counsel stated that the defendant
and the victim had wrestled over the handgun, and that after the gun had
been ‘‘racked’’ if the slide again was pulled back, the chambered unfired
cartridge would be ejected from the gun. He further argued that an unfired
cartridge was found near the bullet casings that had been discharged from
the handgun. He continued by observing that the magazine had a capacity
of eight bullets and that six cartridges remained in the magazine and two
spent casings and one unfired cartridge were found for a total of nine bullets.
Defense counsel noted that this exceeded the capacity of the magazine.
The prosecutor countered that there was no evidence that the two spent
cartridges had come out of the magazine and that it was inappropriate for
defense counsel to suggest that they had. The prosecutor, therefore, appears
to have been correct in his comments that the statements were not based
on the evidence or a rational inference drawn therefrom.
22
In its brief, the state noted that defense counsel had made several
arguments that the prosecutor believed had relied on facts outside the
evidence. On appeal, the defendant focused his claim on the prosecutor’s
statement regarding the number of bullets and the magazine.
23
Defense counsel also raised this objection outside of the presence of
the jury after the closing arguments had concluded.
24
We note that the defendant did not object on these bases at trial. We
will, however, review unpreserved claims of prosecutorial impropriety. Our
Supreme Court has stated that ‘‘a defendant who fails to preserve claims
of prosecutorial [impropriety] need not seek to prevail under the specific
requirements of State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
and, similarly, it is unnecessary for a reviewing court to apply the four-
prong Golding test.’’ (Internal quotation marks omitted.) State v. Warholic,
278 Conn. 354, 360, 897 A.2d 569 (2006).
The defendant also argues that the court improperly validated the prosecu-
tor’s comments by ruling that they were ‘‘appropriate.’’ We conclude that
this is not a claim of prosecutorial impropriety, but rather a claim that the
court abused its discretion with respect to the scope of argument to the
jury. See State v. Arline, 223 Conn. 52, 59, 612 A.2d 755 (1992). As this claim
is unpreserved, we decline to consider it.
25
The defendant has not challenged the court’s instructions to the jury
on the state’s burden of proof to convict the defendant.
26
‘‘In Singh, our Supreme Court stated that closing arguments providing,
in essence, that in order to find the defendant not guilty, the jury must find
that witnesses had lied, are . . . improper. . . . In that case, the [prosecu-
tor’s] argument stated, in essence, that the only way the jury could conclude
that the defendant had not [committed the charged conduct] was if it deter-
mined that five government witnesses had lied.’’ (Citation omitted; internal
quotation marks omitted.) State v. Edward M., supra, 135 Conn. App. 420–21.
27
General Statutes § 53a-19 (b) provides in relevant part: ‘‘Notwithstanding
the provisions of subsection (a) of this section, a person is not justified in
using deadly physical force upon another person if he or she knows that
he or she can avoid the necessity of using such force with complete safety
(1) by retreating, except that the actor shall not be required to retreat if he
or she is in his or her dwelling, as defined in section 53a-100 . . . .’’ Simply
put, ‘‘a person has no duty to retreat before resorting to the use of deadly
physical force if he is attacked in his own dwelling.’’ State v. James, 54
Conn. App. 26, 33, 734 A.2d 1012, cert. denied, 251 Conn. 903, 738 A.2d
1092 (1999).
28
Specifically, the court stated: ‘‘Closing arguments for both sides, the
court finds were appropriate. Both attorneys are strong advocates for their
clients. . . . On the duty to retreat, the charge is not appropriate because
there is an exception because [the defendant] is a tenant of that property.
I do agree with the state that the reasonableness of the defendant’s conduct
is appropriate fodder for obviously both examination on direct and cross,
and in argument concerning his actions in the kitchen that day and what
rooms were to the left and right, and whether he had moved to the left or
right. We also heard a lot of testimony about his daughter and where his
daughter went. So I am not going to indicate anything to the jury about
inappropriate closing remarks by [the prosecutor].’’
29
See L. Carroll, Alice’s Adventures in Wonderland (Bantam Books 1981
Ed.); L. Carroll, Through the Looking Glass (Bantam Books 1981 Ed.).
30
Specifically, defense counsel argued: ‘‘I understand Your Honor is not
going to give a duty to retreat [instruction] and that was a discussion that
we had in chambers. However, on a least four occasions, the state kept
speaking about why didn’t [the defendant] go into the other room. He said
wouldn’t that have been reasonable. The state is aware that we aren’t going
to charge on duty to retreat. I submit to the court that the state pretty much
now is inviting that charge, and I’d ask the court to give that duty to retreat
charge and the exception to the duty to retreat.’’
31
The defendant’s supplemental request to charge provided: ‘‘You have
heard some testimony during this case about whether the defendant believed
he could ‘retreat’ or simply leave the altercation without using force. I must
instruct you that while that evidence may be considered on the issue of the
reasonableness of the degree of force used, you must not in any way infer
that [the defendant] had any duty to retreat. In fact, under Connecticut law,
a person who is acting in self-defense in their own home is not required
to retreat before using force.’’ (Emphasis in original.)