State v. Davis ( 2015 )

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STATE OF CONNECTICUT v. KMEL KELLY DAVIS
(AC 35751)
Alvord, Sheldon and Norcott, Js.
Argued April 20—officially released September 8, 2015
(Appeal from Superior Court, judicial district of New
Haven, B. Fischer, J.)
Deren Manasevit, assigned counsel, for the appel-
lant (defendant).
Lisa A. Riggione, senior assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Eugene R. Calistro, Jr., senior
assistant state’s attorney, for the appellee (state).
Opinion
NORCOTT, J. The defendant, Kmel Kelly Davis,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of manslaughter in the first
degree in violation of General Statutes § 53a-55, and
one count of carrying a pistol or revolver without a
permit in violation of General Statutes § 29-35 (a). The
defendant claims on appeal that (1) the evidence was
insufficient to support his conviction of first degree
manslaughter because the state failed to disprove his
claim of self-defense beyond a reasonable doubt; and
(2) the trial court improperly rejected his proposed jury
instructions on the presumption of innocence and the
burden of proof that replaced the word ‘‘innocent’’ with
the words ‘‘not guilty’’ in each. We reject both of these
claims and, therefore, affirm the judgment of the trial
court.
The jury could reasonably have found the following
facts. On or about September 30, 2011, in the vicinity
of 161 Clay Street, New Haven, Melvin Galloway was
shot and killed, and Demetrius Wilkes was also shot,
although he survived. That afternoon, before venturing
into the neighborhood where the shooting took place,
the defendant went to Norton Street and Whalley Ave-
nue in New Haven to retrieve a .22 caliber revolver
from his friend. The defendant, who had been selling
drugs to supplement his income, had bought some crack
cocaine from the same friend about two weeks
beforehand.
The defendant then got a ride with another individual
in a gold colored Toyota truck to the Clay Street neigh-
borhood, purportedly to visit a friend. On arriving at
161 Clay Street, the defendant got out of the passenger
side of the truck near a tree in front of the three family
house at that address. Around that time, a crack cocaine
addict approached the defendant and requested drugs.
The defendant sold him two bags of crack cocaine. The
addict then left the area.
After this transaction, the defendant walked up onto
the front porch of 161 Clay Street, where Aaliyah Jones
and Laquanna McNatt were sitting. McNatt was dating
Galloway and resided, at the time, with her children on
the second floor of the house at 161 Clay Street. Jones
was Galloway’s cousin and, at the time, resided nearby
at 165 Clay Street. Jones had gone to McNatt’s house
to babysit one of McNatt’s children, as McNatt had
made plans to go out that evening with Jones’s mother.
Almost immediately after the defendant joined
McNatt and Jones on the porch, Galloway came onto
the porch and asked the defendant ‘‘did he make a sale
over there . . . .’’ The defendant answered that he had.
Galloway then punched the defendant in the face, and
the two began to fight. McNatt briefly tried to stop the
combatants by getting in between them, but her efforts
were to no avail. At this point, both men were still
standing as they fought.
About forty seconds into the fight, Galloway called
out to his cousin, Wilkes, who was across the street.
Wilkes ran to the porch and began to punch the defen-
dant. Wilkes also pulled the hood of the defendant’s
sweatshirt over his face. Jones testified that ‘‘both [Gal-
loway and Wilkes were] on the defendant, just had
him by his head, they all was running around punching
each other.’’
Galloway and Wilkes then wrestled the defendant to
the ground. Wilkes punched the defendant a couple of
times, and the defendant struck back. McNatt then
broke up the fight, and the defendant pulled out a gun
and started shooting. He fired two or three shots, then
paused, then fired three more shots. Wilkes was shot
first as he was leaving the porch; he sustained two
nonfatal bullet wounds. Galloway, who was shot sec-
ond, also attempted to run away and sustained multiple
gunshot wounds as he fled. At least one of these wounds
caused his death. The defendant then fled the scene.
The defendant was arrested ten days later, on Octo-
ber 10, 2011, after learning that the police were looking
for him and going to the police station with his attorney
to turn himself in. The state charged the defendant with
one count of murder in violation of General Statutes
§ 53a-54a (a), one count of assault in the first degree
by means of the discharge of a firearm in violation
of General Statutes § 53a-59 (a) (5), and one count of
carrying a pistol or revolver without a permit in viola-
tion of § 29-35 (a). After a trial, the jury found the defen-
dant not guilty of the charge of murder and instead
convicted him of the lesser included offense of man-
slaughter in the first degree in violation of § 53a-55, and
of carrying a pistol or revolver without a permit in
violation of § 29-35. The jury acquitted him on the count
of assault in the first degree. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
I
The defendant first claims that the evidence was
insufficient to support his conviction because the state
failed to disprove his claim of self-defense beyond a
reasonable doubt. Specifically, the defendant argues
that the circumstances of the altercation between him
and the victims justified the defendant’s belief that he
was about to suffer serious bodily harm and that his use
of deadly force was, therefore, objectively reasonable
under the circumstances. The defendant’s arguments
rest, however, upon a competing interpretation of the
evidence that the jury rejected. Because the jury’s rejec-
tion of the defendant’s interpretation was reasonable,
the defendant’s claim fails.
‘‘Whether the defense of the justified use of force,
properly raised at trial, has been disproved by the state
is a question of fact for the jury, to be determined
from all the evidence in the case and the reasonable
inferences drawn from that evidence.’’ (Emphasis omit-
ted; internal quotation marks omitted.) State v. Pauling,
102 Conn. App. 556, 571–72, 925 A.2d 1200, cert. denied,
284 Conn. 924, 933 A.2d 727 (2007). ‘‘[I]n viewing evi-
dence which could yield contrary inferences, the jury
is not barred from drawing those inferences consistent
with guilt and is not required to draw only those infer-
ences consistent with innocence.’’ (Internal quotation
marks omitted.) State v. Johnson, 71 Conn. App. 272,
281, 801 A.2d 890, cert. denied, 261 Conn. 939, 808 A.2d
1133 (2002), cert. denied, 537 U.S. 1207, 123 S. Ct. 1286,
154 L. Ed. 2d 1052 (2003). Accordingly, the ‘‘standard
for reviewing sufficiency claims in conjunction with a
justification offered by the defense is the same standard
used when examining claims of insufficiency of the
evidence. . . . In reviewing [a] sufficiency [of evi-
dence] claim, we apply a two-part test. First, we con-
strue 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. . . .
‘‘On appeal, we do not ask whether there is a reason-
able view of the evidence that would support a reason-
able hypothesis of innocence. We ask, instead, whether
there is a reasonable view of the evidence that supports
the [trier of fact’s] verdict of guilty. . . . We are mind-
ful as well that [t]he state has the burden of disproving
the defense of justified use of force . . . beyond a rea-
sonable doubt. . . . Whether the defense of the justi-
fied use of force, properly raised at trial, has been
disproved by the state is a question of fact for the jury,
to be determined from all the evidence in the case and
the reasonable inferences drawn from that evidence.
. . . As long as the evidence presented at trial was
sufficient to allow the jury reasonably to conclude that
the state had met its burden of persuasion, the verdict
will be sustained.’’ (Citation omitted; internal quotation
marks omitted.) State v. Wortham, 80 Conn. App. 635,
640–41, 836 A.2d 1231 (2003), cert. denied, 268 Conn.
901, 845 A.2d 406 (2004).
General Statutes § 53a-19 governs the use of physical
force in defense of person, or self-defense.1 ‘‘Our
Supreme Court has interpreted § 53a-19 (a) to require
that a person may justifiably use deadly physical force
in self-defense only if he reasonably believes both that
(1) his attacker is using or about to use deadly physical
force against him, or is inflicting or about to inflict
great bodily harm, and (2) that deadly physical force is
necessary to repel such an attack.’’ (Emphasis omitted;
internal quotation marks omitted.) State v. Pranckus,
75 Conn. App. 80, 88, 815 A.2d 678, cert. denied, 263
Conn. 905, 819 A.2d 840 (2003).
‘‘First, we construe the evidence in the light most
favorable to sustaining the verdict.’’ (Internal quotation
marks omitted.) State v. Wortham, supra, 80 Conn. App.
640. Among other evidence, the jury had before it the
testimony of several eyewitnesses. These witnesses uni-
formly testified to a version of events that was at odds
with the defendant’s and that, if the witness’ version
was believed, would have disproved the defendant’s
claim of self-defense. Jones, McNatt, and Wilkes, who
was the assault victim, all testified that Wilkes was not
armed with a gun. This testimony conflicted with the
account of the defendant, who claimed to have seen
Wilkes try, but fail, to pull out a black pistol lodged
between his belt and waistband. Furthermore, all of
the eyewitnesses testified that the defendant shot the
victims as they were running away from the porch. This
testimony, too, conflicted with that of the defendant,
who claimed that he shot the victims while they were
both still on the porch. The physical evidence also cor-
roborated the eyewitnesses’ account: there was no
blood found on the porch; blood was found only at the
bottom of the porch steps and leading away from them.
Furthermore, although Galloway’s deepest bullet
wound was to his chest, expert testimony established
that there was no stippling around the wound, which,
if present, would have suggested a close proximity
between him and the defendant, as the defendant had
testified. The witnesses all also testified that the defen-
dant paused in between shooting Wilkes and Galloway.
Furthermore, Detective Nicole Natale of the New Haven
Police Department testified that, when the defendant
turned himself in to the police, he had no apparent
wounds of any kind.
The next step of our analysis is to ‘‘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.’’ (Internal
quotation marks omitted.) Id. The jury was free to
believe the testimony of the state’s witnesses and to
disbelieve the defendant’s. If the jury credited the testi-
mony of the state’s witnesses, it could have inferred
that, because Wilkes was unarmed, the defendant’s
alleged belief that deadly force was about to be used
against him was not reasonable. See General Statutes
§ 53a-19 (a); State v. Pranckus, supra, 75 Conn. App.
88–89. The jury could have drawn the same inference
if it believed the testimony of the state’s witnesses that
the victims were, in fact, running away when the defen-
dant shot them, in conjunction with the physical evi-
dence, specifically, the blood trail that only began off
the porch. Furthermore, if the jury credited Natale’s
testimony, it could have inferred that, because the
defendant bore no obvious physical signs of having
been wounded when he turned himself in to the police,
he had not suffered any during the altercation and could
not reasonably have believed that he was about to suffer
‘‘great bodily harm’’ at the hands of the victims when
he shot them. General Statutes § 53a-19 (a). Even indi-
vidually, such inferences would defeat the defendant’s
self-defense claim.
Although the defendant points to many pieces of evi-
dence in the record that he construes in support of his
self-defense theory, the jury was free to disbelieve that
evidence or to draw different inferences from it than
the defendant draws. See State v. Pranckus, supra, 75
Conn. App. 88. By contrast, there was ample evidence
before the jury that contradicted, or could have been
construed to contradict, the defendant’s theory.
Because there is therefore a ‘‘reasonable view of the
evidence that supports the [jury’s] verdict of guilty’’;
State v. Wortham, supra, 80 Conn. App. 640–41; we
conclude that there was sufficient evidence to sustain
the defendant’s conviction of manslaughter in the
first degree.
II
The defendant next claims that the trial court errone-
ously rejected his proposed jury instructions on the
presumption of innocence and the burden of proof,
which requested that the jury be instructed, respec-
tively, that the defendant is ‘‘presumed to be not guilty’’
and that ‘‘the defendant does not have to prove that he
is not guilty.’’ Specifically, the defendant contends that
because ‘‘not guilty’’ and ‘‘innocent’’ are legally distinct
concepts, the trial court’s failure to substitute the words
‘‘not guilty’’ for the word ‘‘innocent’’ in the instructions
likely misled the jury into believing that it would have
to find that the defendant was innocent in order to
render a verdict of not guilty. Accordingly, he claims,
he was denied a fair trial. We disagree.
The facts relevant to this claim are as follows. At
trial, the defendant submitted a set of written requests
to charge dated January 4, 2013. Among those requests
was a proposed instruction on the burden of proof and a
proposed instruction on the presumption of innocence.
The defendant’s proposed instruction on the burden of
proof read in relevant part: ‘‘The defendant does not
have to prove that he is not guilty.’’ The defendant’s
proposed instruction on the presumption of innocence
read in relevant part: ‘‘[T]he accused is presumed to
be not guilty until, and only if, he is proved guilty.’’
(Emphasis in original.) The trial court declined each
of these requests. The trial court gave the traditional
instructions in these areas of the law, which use the
word ‘‘innocent’’ instead of the words ‘‘not guilty.’’2
Before delving into the merits of the defendant’s
claim, we set forth the standard of review for instruc-
tional impropriety. In gauging the propriety of jury
instructions, ‘‘[t]he pertinent test is whether the charge,
read in its entirety, fairly presents the case to the jury
in such a way that injustice is not done to either party
under the established rules of law. . . . Thus, [t]he
whole charge must be considered from the standpoint
of its effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a micro-
scopic search for possible error. . . . Accordingly, [i]n
reviewing a constitutional challenge to the trial court’s
instruction, we must consider the jury charge as a whole
to determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, 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).
The law of jury instruction on the presumption of
innocence remains as it was in State v. Dickson, 150
Conn. App. 637, 91 A.3d 958, cert. granted on other
grounds, 314 Conn. 913, 100 A.3d 404 (2014), which the
defendant in his reply brief conceded controls this case,
but at oral argument claimed was distinguishable.3 ‘‘[A]
claim of instructional impropriety regarding the pre-
sumption of innocence . . . is of constitutional magni-
tude. . . . The principle that there is a presumption of
innocence in favor of the accused is the undoubted law,
axiomatic and elementary, and its enforcement lies at
the foundation of the administration of our criminal
law.’’ (Citation omitted; internal quotation marks omit-
ted.) Id., 653.
‘‘[I]n a criminal case the term [presumption of inno-
cence] does convey a special and perhaps useful hint
over and above the other form of the rule about the
burden of proof, in that it cautions the jury to put away
from their minds all the suspicion that arises from the
arrest, the indictment, and the arraignment, and to
reach their conclusion solely from the legal evidence
adduced. In other words, the rule about burden of proof
requires the prosecution by evidence to convince the
jury of the accused’s guilt; while the presumption of
innocence, too, requires this, but conveys for the jury
a special and additional caution (which is perhaps only
an implied corollary to the other) to consider, in the
material for their belief, nothing but the evidence, i.e.,
no surmises based on the present situation of the
accused.’’ (Emphasis omitted; internal quotation marks
omitted.) Id., 654, quoting Taylor v. Kentucky, 436 U.S.
478, 484–85, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978).
The court in Dickson deemed an instruction on the
presumption of innocence that used the word ‘‘inno-
cent’’ instead of the phrase ‘‘not guilty’’ to be ‘‘correct
in law [and] adapted to the issues,’’ and, accordingly,
the instruction ‘‘provided ample guidance to the jury.’’
(Internal quotation marks omitted.) State v. Dickson,
supra, 150 Conn. App. 652, 654. The trial court here
gave an instruction identical in this respect, and there-
fore, like the trial court in Dickson, ‘‘did not abuse
its discretion by charging the jury with the words the
defendant is presumed to be innocent.’’ (Internal quota-
tion marks omitted.) Id., 654. Accordingly, we also con-
clude that the court did not abuse its discretion by
charging the jury with the words ‘‘[t]he defendant does
not have to prove his innocence.’’ See id.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-19 provides in relevant part: ‘‘(a) Except as pro-
vided in subsections (b) and (c) of this section, a person is justified in using
reasonable physical force upon another person to defend himself or a third
person from what he reasonably 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.
‘‘(b) 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, or place of work and was not the initial aggressor . . . or
(2) by surrendering possession of property to a person asserting a claim of
right thereto, or (3) by complying with a demand that he or she abstain
from performing an act which he or she is not obliged to perform.
‘‘(c) Notwithstanding the provisions of subsection (a) of this section, a
person is not justified in using physical force when (1) with intent to cause
physical injury or death to another person, he provokes the use of physical
force by such other person, or (2) he is the initial aggressor, except that
his use of physical force upon another person under such circumstances is
justifiable if he withdraws from the encounter and effectively communicates
to such other person his intent to do so, but such other person notwithstand-
ing continues or threatens the use of physical force, or (3) the physical
force involved was the product of a combat by agreement not specifically
authorized by law.’’
2
The trial court’s instructions read in relevant part: ‘‘Now, there are certain
general principles which govern the ordinary procedure of a trial of a person
charged with a violation of our law and I’ll now instruct you on these
principles, and the first is the presumption of innocence. In this case as in
all criminal prosecutions the defendant is presumed to be innocent until
proven guilty beyond a reasonable doubt. It is a fundamental principle of
our system. The presumption of innocence was with this defendant when
he was first presented for trial in this case. He must be considered free of
any bias or prejudice or burden arising out of the fact that he’s been arrested.
This continues with him throughout this trial. Unless and until such time
as all the evidence, produced here in the orderly conduct of the case,
considered in the light of these instructions of law, and deliberated upon
you in the jury room, satisfies you beyond a reasonable doubt that he is
guilty. Thus, the presumption of innocence alone is sufficient to acquit the
defendant . . . unless the jurors are satisfied beyond a reasonable doubt
of the defendant’s guilt after a careful and impartial consideration of all
the evidence and facts in this case. The presumption of innocence applies
individually to each crime charged and it may be overcome as to each
specific crime only if the state introduces evidence that establishes the
defendant’s guilt as to each crime charged beyond a reasonable doubt. If
and when the presumption of innocence has been overcome by evidence
proven beyond a reasonable doubt that the accused is guilty of the crime
charged, then it is the sworn duty of the jury to enforce the law and render
such a verdict. The next subject I want to talk to you about is the burden
of proof.
‘‘The burden to prove the defendant guilty of the crime or crimes charged
is upon the state of Connecticut. The defendant does not have to prove his
innocence. This means that the state must prove beyond a reasonable doubt
each and every element necessary to constitute the crime charged. Whether
the burden of proof resting upon the state is sustained depends not upon
the number of witnesses nor on the quantity of the testimony but on the
nature and quality of the testimony. Please bear in mind that one witness’
testimony is sufficient to convict if it establishes all the elements of the
crime beyond a reasonable doubt. The state must prove every element
necessary to constitute the crime charged. If one element of the crime
charged is lacking you must find the defendant not guilty of that crime. The
state is not required to prove every fact concerning the crime charged
beyond a reasonable doubt. The state’s obligation is to prove each and every
element of the crime charged beyond a reasonable doubt.’’ (Emphasis
added.)
3
The defendant filed his principal appellate brief on April 14, 2014. This
court decided Dickson on June 3, 2014. Although the defendant filed his
reply brief on December 19, 2014, after Dickson was decided, he did not in
that brief argue that Dickson was distinguishable. At oral argument before
this court, however, the defendant pointed out that in Dickson the facts
involved premeditated robbery; see State v. Dickson, supra, 150 Conn. App.
639–41; whereas in this case, there was a self-defense claim, with the pur-
ported result that the jury was more likely to be confused by the traditional
instruction in this case than in Dickson. Because the defendant has not
briefed this argument, we will not pass upon it. See, e.g., Nowacki v. Nowacki,
129 Conn. App. 157, 165, 20 A.3d 702 (2011) (declining to review issue
because inadequately briefed).