Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Rios

Court of Appeals of Connecticut

February 28, 2017

STATE OF CONNECTICUT
v.
ALBERTO RIOS

          Argued September 19, 2016

         Appeal from Superior Court, judicial district of Fairfield, Kahn, J.

          Mary A. Beattie, assigned counsel, for the appellant (defendant).

          Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Pamela J. Esposito, senior assistant state's attorney, for the appellee (state).

          DiPentima, C. J., and Prescott and Gruendel, Js.

          OPINION

          PRESCOTT, J.

         The defendant, Alberto Rios, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and three counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a).[1] On appeal, the defendant claims that (1) the trial court improperly denied his motion to set aside the verdict and for a new trial because the jury's verdict on several counts was legally inconsistent, and he was not afforded sufficient notice of the charges brought against him, (2) the trial court improperly permitted the state to question the defendant about the credibility of another witness and the defendant's tattoos, (3) the trial court improperly instructed the jury regarding the scope of his duty to retreat before engaging in self-defense, (4) prosecutorial improprieties during the trial deprived him of due process, and (5) this court should exercise its supervisory authority over the administration of justice and order a new trial because of the prosecutor's alleged pattern of improper conduct in this case and other cases. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. During the spring of 2013, Edwin Nunez lived with his girlfriend, Jessica Sanchez (Jessica), in her apartment near the corner of Washington Avenue and Coleman Street in Bridgeport. Jessica and her sister, Erica Sanchez (Erica), had known the defendant since childhood, and Erica and the defendant had previously dated. The defendant lived on Olive Street in Bridgeport. The defendant lived in the same neighborhood as Lucy Lucasio, the mother of Jessica and Erica, who knew the defendant because he had dated Erica.

         On April 22, 2013, the defendant sent Nunez a threatening message via Facebook. Prior to receiving this message, Nunez did not know the defendant. Although the message did not contain the defendant's name, the message was accompanied by a photograph of the defendant. In the message and in subsequent messages between Nunez and the defendant, the defendant threatened to harm Nunez and indicated that he previously had assaulted Erica and members of her family, had set Lucasio's house on fire, and had accused Erica of cheating on him.

         Nunez asked Erica about the messages, and she identified the defendant as the true sender of them. Nunez also was aware that there was ‘‘bad blood'' between Erica's family and the defendant. As a result of these messages, which also disparaged Jessica, Nunez concluded that he had to ‘‘stick up'' for Jessica and wanted to call the defendant's ‘‘bluff.'' Accordingly, he arranged to meet the defendant near the corner of Washington Avenue and Coleman Street, but did not take the defendant's threats seriously because, in his view, people often ‘‘say stuff on the Internet, and they don't mean it.'' Shortly before going outside to meet the defendant, Nunez received a call from Erica in which she indicated that she had just received a threat from the defendant.

         Nunez left his apartment in the middle of the day to meet the defendant at the street corner, but did not take a weapon with him. Nunez observed the defendant, alone in his vehicle, drive by him, after which Nunez immediately received a Facebook message on his phone from the defendant, asking him: ‘‘What are you doing out in the open? I like to get away with crime.'' Shortly thereafter, Jessica joined Nunez outside on the sidewalk near Washington Avenue.

         Five or ten minutes later, the defendant returned in his vehicle, this time accompanied by a passenger who was later identified as Robert McDougall. Although Nunez had temporarily turned his back to the street, Jessica observed the defendant accelerate his car toward them. The defendant drove the vehicle directly at Nunez and Jessica while accelerating, striking them both. Nunez was propelled onto the hood of the car, off its windshield, and against a wall. Following the crash, the defendant and McDougall exited the vehicle. McDougall fled the scene, but the defendant immediately approached Nunez, got on top of him, and began punching him in the face. Jessica, who was not as seriously injured as Nunez, pulled the defendant off of Nunez. The defendant left the scene on foot before the police arrived.

         Both Jessica and Nunez were taken to the hospital. Jessica received four stiches to mend a laceration on her lip. Nunez had surgery to repair a broken arm and leg, and never fully regained mobility in his arm and leg due to the serious trauma to his limbs.

         The defendant was arrested and ultimately charged in a five count amended information as follows. In count one, the defendant was charged with assault in the first degree by using his motor vehicle, a dangerous instrument, to strike Nunez with the intent to cause serious physical injury to him in violation of § 53a-59 (a) (1). In count two, the defendant was charged with assault in the second degree arising from the same conduct as alleged in count one, the difference being that, with the intent to cause serious physical injuries to Nunez, he caused serious physical injury to Jessica in violation of § 53a-60 (a) (2). In counts three, four, and five, the defendant was charged with reckless endangerment in the first degree for engaging in unspecified reckless conduct with extreme indifference to human life, which created a risk of serious injury to Jessica, Nunez, and McDougall, respectively, in violation of § 53a-63 (a).

         At trial, the defendant testified that he drove toward Nunez in self-defense. He asserted that it had been Nunez who had threatened him, and that, as he approached Nunez and Jessica, he observed Nunez reaching into his coat toward his waistband for what he believed was a gun. The defendant testified that he believed that he was going to ‘‘get shot'' and that he instinctively attempted to protect himself by driving the car toward Nunez.

         The jury returned a verdict of guilty on all five counts.[2]This appeal followed. Additional facts and procedural history will be set forth later as necessary to address the specific claims of the defendant.

         I

         The defendant first claims that the court improperly denied his motion to set aside the verdict and for a new trial. The defendant's claim on appeal is twofold. First, he argues that the verdict on counts one, two, and four is legally inconsistent. Specifically, the defendant argues that the jury's necessary conclusion that he had engaged in an intentional assault of Nunez and Jessica as charged in counts one and two, is legally inconsistent with its conclusion that he recklessly engaged in conduct that created a risk of serious physical injury to Nunez, as charged in count four of the amended information. In response, the state argues that the verdict is not legally inconsistent because a ‘‘plausible theory'' exists under which the jury reasonably could have found the defendant guilty of all three offenses. The state's ‘‘plausible theory'' is that the defendant's conviction on counts one and two was based on his conduct in steering his automobile directly into Nunez and Jessica, whereas his conviction on count four was based upon his postcrash conduct during which the defendant exited the vehicle and proceeded to punch Nunez in the face while he lay on the ground already seriously injured.

         Second, the defendant argues on appeal that he lacked constitutionally sufficient notice of the charges of which he could be convicted because the state's theory of the case at trial was never that he acted recklessly in harming the victims but, instead, that he was on a ‘‘hunting mission'' and intended to assault Nunez. The state counters that its theory of the case was not limited to the defendant's intentional assault but, instead, included a theory that the defendant, after he had intentionally assaulted Nunez and Jessica, recklessly engaged in conduct that created a risk of serious harm to Nunez by exiting his vehicle and punching Nunez. For the reasons subsequently set forth, we disagree with the defendant's assertions.

         The following facts and procedural history are relevant to these claims. At trial, the state called Nunez to testify, and he described the defendant's conduct prior to and after the defendant crashed into him and Jessica with his vehicle. Specifically, Nunez testified that he was ‘‘flipped over'' by a speeding vehicle driven by the defendant and ‘‘landed near the building'' he was standing by with Jessica. After Nunez landed, he heard Jessica ‘‘screaming'' and then witnessed the defendant approach him. Nunez stated that the defendant got on top of him and struck him with his fists while he lay seriously injured from being struck by the defendant's vehicle. In addition to Nunez' testimony, other evidence was introduced that described the defendant's post-crash conduct, including the testimony of Jan Zolotov, an eyewitness, who described the event in similar terms.[3]

         Following the conclusion of trial, the defendant filed a motion to set aside the verdict and for a new trial. In support of his motion, the defendant argued that the verdict on counts one and two required proof of a mental state legally inconsistent with that required to find him guilty on count four. Specifically, the defendant argued that his conviction under counts one and two is legally inconsistent with the conviction under count four because the first two counts required the jury to conclude that his conscious objective was to cause serious physical injury to Nunez, while count four required the jury to conclude that the defendant recklessly engaged in conduct that created a risk of serious physical injury to Nunez. To support his inconsistent verdict claim, the defendant argued that the state's theory of the case was that he was on a ‘‘hunting mission'' and that the evidence presented at trial tended to show only that he intended to cause serious physical injury to Nunez.

         In response, the state argued that the jury plausibly could have found that the defendant possessed distinct mental states before and after the vehicle crash. Specifically, the state argued that the jury could have found that the defendant intended to cause serious physical injury to Nunez when the defendant drove his vehicle into Nunez, and that the defendant was reckless in creating a risk of serious physical injury to Nunez when the defendant exited the vehicle after the crash and began striking Nunez with his fists. Additionally, the state claimed that the prosecutor ‘‘never argued a factual basis for [first degree] reckless endangerment'' and that the jury was ‘‘free'' to come to such conclusions on the basis of the ‘‘evidence available'' to it.

         On May 15, 2014, the trial court denied the defendant's motion to set aside the verdict and for a new trial. The court agreed with the state that the evidence introduced at trial supported a ‘‘rational theory'' of both intentional assault and reckless endangerment, and that the defendant reasonably could have possessed ‘‘different mental states as to different results.'' The court pointed to the defendant's testimony that after he crashed into Nunez, he exited his vehicle, jumped on Nunez, and struck him with his fists, disregarding the serious physical injuries that Nunez had already suffered.

         Before turning to the merits of the defendant's claims on appeal, it is important to review some recent developments in the law of inconsistent verdicts and to discuss how the timing of these developments affected the defendant's presentation of his claim to the trial court that the verdict as to certain of the counts in this case was legally inconsistent.

         At the time the defendant moved to set aside the verdict on the ground that it was legally inconsistent, he relied heavily upon this court's decision in State v. King, 149 Conn.App. 361, 87 A.3d 1193 (2014), rev'd, 321 Conn. 135, 136 A.3d 1210 (2016). In King, the defendant was tried on two counts of assault in the first degree in violation of § 53a-59 (a) (1) and (3). State v. King, 321 Conn. 135, 137, 136 A.3d 1210 (2016). The first count alleged that the defendant intentionally had stabbed the victim. Id., 137-39. The second count alleged that he recklessly engaged in conduct under circumstances evincing an extreme indifference to human life and thereby caused serious physical injuries to the victim. Id.

         At trial, the jury in King was presented with evidence regarding the underlying criminal conduct that occurred in two phases. Id., 142. The jury first heard evidence of a dispute between the defendant and Kyle Neri over an unpaid loan at the victim's home. Id., 138, 142-43. As the dispute escalated, the defendant grabbed a knife and began swinging it at Neri. Id., 138, 143. The victim intervened in the dispute and attempted to remove the knife from the defendant's grasp, but was struck by the knife and injured. Id., 139. Later, the jury was presented with an account of the defendant's subsequent conduct; id., 143-44; in which the defendant threw the victim up against a wall and stabbed her ‘‘at least three times with a steak knife.'' Id., 144.

         The trial court in King denied a motion to set aside the verdict on the ground that it was legally inconsistent. Id., 139. The defendant appealed to this court, and we reversed the judgment of conviction on the ground that the verdict was legally inconsistent. State v. King, supra, 149 Conn.App. 363.

         In doing so, this court held that a proper assessment of whether a verdict is legally inconsistent must be conducted in light of the state's theory of the case. Specifically, this court stated that ‘‘[i]n determining whether a verdict is legally and logically inconsistent . . . a reviewing court must also consider the way in which the state presented the case to the jury.'' Id., 371. This court then analyzed the record and concluded that the state pursued the charges against the defendant as alternative theories of liability, that is, as one substantive criminal offense that was committed either recklessly or intentionally. Id., 373. As a result, this court concluded that the judgment of conviction on both counts violated ‘‘the defendant's due process rights to fair notice of the charges against him . . . .'' Id., 375.

         Relying in part on our decision in King, the defendant in the present case presented a single claim to the court in his motion to set aside the verdict: The verdict on counts one and two was legally inconsistent with the verdict on count four. That single claim, however, appeared to employ the analytical framework set forth in this court's decision in King because it rested, in part, on a subsidiary assertion that the state, by amending the information before trial, had abandoned its reliance upon the defendant's postcrash conduct as a factual basis of guilt and, therefore, should not be permitted to argue on appeal that the verdict was legally consistent because of the defendant's postcrash conduct. In so doing, however, the defendant did not raise a separate claim that his due process right to notice of the charges against him had been violated because he had been convicted of having engaged in conduct with which he had not been charged.

         After the defendant filed his principal brief in this court, our Supreme Court reversed this court's decision in State v. King, supra, 149 Conn.App. 361. See State v. King, supra, 321 Conn. 148. Specifically, our Supreme Court clarified that a defendant's claim that a verdict is legally inconsistent is conceptually distinct from a claim that the state altered its theory of the case after the verdict; id., 148-49; which is more properly characterized as a separate due process claim. Id. The Supreme Court concluded that these are ‘‘ultimately separate issues and reviewing courts should evaluate them as such.'' Id., 148. The court emphasized that the resolution of a claim that a verdict is legally inconsistent should not be resolved by reference to the state's theory of the case but, instead, by examining the elements of the charges at issue to determine whether there is any plausible view of the evidence that would render the verdict legally consistent. Id., 140-41. Thus, in order to address the defendant's arguments properly in the present case, we separate and analyze the two arguments independently pursuant to the direction of our Supreme Court in King.

         A

         We first turn to whether there was ‘‘any plausible theory''; id., 141; under which the jury reasonably could have concluded that the defendant was guilty of all crimes charged under counts one, two, and four without creating a legal inconsistency. The defendant argues that there is no plausible theory under which the jury could have found him guilty of both intentional assault in counts one and two and reckless endangerment in count four because the requisite mental states for those charges are legally inconsistent, and are based upon the same criminal conduct and result. In response, the state argues that the defendant's conduct gave rise to two separate crimes whereby the defendant acted intentionally and recklessly at different times, and with respect to different results. We agree with the state.

         The following legal principles guide our decision. A legally inconsistent conviction exists when ‘‘a conviction of one offense requires a finding that negates an essential element of another offense of which the defendant also has been convicted.'' State v. Nash, 316 Conn. 651, 659, 114 A.3d 128 (2015). ‘‘When confronted with such a claim we carefully examine the elements of both offenses.'' State v. King, supra, 321 Conn. 140. ‘‘In examining a claim of legal inconsistency, we must closely examine the record to determine whether there is any plausible theory under which the jury reasonably could have found the defendant guilty of both offenses. . . . Additionally, in determining whether two mental states are mutually exclusive, the court must consider each mental state as it relates to the particular result described by the statute.'' (Citation omitted; internal quotation marks omitted.) Id., 140-41. The determination of whether the defendant's conviction is legally inconsistent is a question of law, over which we exercise plenary review. Id., 141.

         Here, the defendant argues that there is no ‘‘plausible theory'' under which the jury could have found him guilty of both intentional assault and reckless endangerment. Specifically, the defendant argues that his conduct amounted to one continuous act, and that his conviction on counts one, two, and four required the jury to find that he simultaneously acted intentionally and recklessly ‘‘with regard to the same victim, the same act, and the same result.''

         The defendant argues that the facts before us are analogous to those set forth in State v. King, 216 Conn. 585, 583 A.2d 896 (1990), a 1990 decision of our Supreme Court that is not to be confused with its 2016 decision in State v. King, supra, 321 Conn. 135. The defendant in State v. King, supra, 216 Conn. 586, was charged with and found guilty of the crimes of assault in the first degree in violation of § 53a-59 (a) (3), arson in the first degree in violation of General Statutes § 53a-111 (a) (2), and attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a). The defendant's conviction arose from an incident that occurred while serving a prison sentence at the Bridgeport Community Correctional Center. Id., 588. In the early morning of June 20, 1988, a fire broke out in one of the cells that caused serious harm to the cell's occupant. Id. It was later discovered that, prior to the fire, the defendant and the victim had been in a dispute, and that the defendant started the fire to harm the victim following that dispute. Id.

         Following his conviction, the defendant claimed on appeal that the trial court improperly denied his motion for a new trial because it should not have instructed the jury that it could find him guilty of both attempted murder and assault (reckless) in the first degree. Id., 592. Our Supreme Court agreed, vacating the conviction of assault in the first degree and attempted murder, and ordering a new trial. Id., 603-604.

         Our Supreme Court explained that in order for the jury to find the defendant guilty of attempted murder, it must have concluded that the ‘‘defendant acted with the intent to cause the death of the victim.'' (Footnote omitted.) Id., 593. ‘‘On the other hand, the jury's verdict of guilty on the count of assault [reckless] necessitated a finding that the defendant acted recklessly, and thereby created a risk of death to the victim.'' (Emphasis in original; footnote omitted.) Id. Our Supreme Court recognized that ‘‘[t]o return verdicts of guilty for both attempted murder and assault in the first degree [reckless] . . . the jury would have had to find that the defendant simultaneously acted intentionally and recklessly with regard to the same act and the same result, i.e., the injury to the victim.'' Id. The defendant's convictions were overturned because ‘‘the transgression that caused the victim's injuries was either intentional or reckless; it could not, at one and the same time, be both.'' Id., 594.

         We acknowledge that the defendant before us was convicted of crimes that, like those in State v. King, supra, 216 Conn. 585, possess mutually exclusive mental states, but disagree that the facts of that case are analogous to those before us. The primary distinction between the present facts and those in State v. King, supra, 585, is that the jury here was presented with evidence of two separate criminal acts. Although it is undisputed that an individual cannot simultaneously act intentionally and recklessly, that notion is limited to the same criminal conduct and result. See id., 594 (explaining that a single act cannot both be intentional and reckless). The defendant in King committed a single criminal act when he started a fire within the cell that caused harm to the victim. Id., 588. The opposite is true here, as the jury reasonably could have concluded that the defendant's conduct amounted to two distinct criminal acts in which he possessed otherwise mutually exclusive mental states.

         Instead, the present case is more analogous to the later King (2016) decision, the facts of which we have discussed previously. See State v. King, supra, 321 Conn. 135, the facts of which we have discussed previously. In King (2016), our Supreme Court clarified that, under certain circumstances, a jury reasonably could conclude that a criminal defendant can possess otherwise mutually exclusive mental states throughout the course of temporally related but separate criminal acts. Id., 144. Specifically, the jury in that case could have found that the defendant ‘‘was guilty of both crimes by stabbing the victim while recklessly swinging the knife at Neri and then intentionally stabbing the victim after she intervened and the defendant threw her against the wall.'' Id. Our Supreme Court further reasoned that ‘‘a defendant may be convicted of crimes that require differing mental states, so long as those states relate to different criminal results.'' Id., 145; see also State v. Nash, supra, 316 Conn. 666 (affirming the defendant's conviction ‘‘because the two mental states required to commit the offenses relate to different results'').

         In the present case, with respect to the defendant's conviction of assault as charged in counts one and two, evidence was presented at trial that sufficiently described a plausible theory whereby the jury reasonably could have concluded that the defendant, who had been seeking to initiate a physical confrontation with Nunez, committed the crimes of (1) assault in the first degree pursuant to § 53a-59 (a) (1)[4] by intentionally striking Nunez with his vehicle with the intent to cause him serious physical injuries; (2) assault in the second degree pursuant to § 53a-60 (a) (2), [5] by causing serious physical injury to Jessica by striking her with his vehicle with the intent to cause serious physical injuries to Nunez; and (3) reckless endangerment in the first degree pursuant to § 53a-63 by exiting his vehicle following the crash and striking an already seriously injured Nunez with his fists, thereby creating a risk of exacerbating those injuries. Even though the defendant's acts here were temporally related, the jury reasonably could have concluded that the defendant was guilty of intentionally assaulting Nunez and Jessica, and reckless endangerment by discrete acts throughout the entire course of conduct described to the jury.

         We, therefore, conclude that a plausible theory exists whereby the jury reasonably could have concluded that the defendant's conduct amounted to separate criminal acts. Accordingly, the defendant's conviction of assault and reckless endangerment under counts one, two, and four is not legally inconsistent.

         B

         We next consider whether the defendant received constitutionally sufficient notice of the charges brought against him. The defendant argues that he was not afforded such notice, in part because the state abandoned charges relating to the defendant's postcrash conduct by amending, on the eve of trial, the original information. Specifically, the defendant argues that the state proceeded at trial solely on a theory that he acted intentionally because he was on a ‘‘hunting mission.'' We disagree.

         Before turning to the merits of this claim, we note that, because the defendant did not raise this due process claim as a separate and distinct claim to the trial court, we arguably are not bound to consider it. Practice Book § 60-5; Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714, 761, 95 A.3d 1031 (2014). In this case, however, we elect to review the defendant's due process claims for several reasons.

         First, the defendant presented his inconsistent verdict and due process claims to the trial court as one claim, on the basis of the existing structural framework used by this court in State v. King, supra, 149 Conn.App. 361. Although that framework was subsequently rejected by our Supreme Court, it would be unfair to penalize the defendant by declining review of his due process claim for structuring it on the basis of applicable law at that time.

         Second, although the defendant's due process claim was not raised independently from his inconsistent verdict claim, the essence of the claim actually was presented to and decided by the trial court. Specifically, the trial court understood and rejected the defendant's argument that he somehow lacked notice of the charges against him because the state's theory of the case post-verdict was different from the manner in which it was presented to the jury. Accordingly, affording this claim review on appeal will not result in trial by ambuscade or be unfair to the trial court or the opposing party. See State v. Elson, 311 Conn. 726, 749, 91 A.3d 862 (2014).

         Third, although the Supreme Court's decision in State v. King, supra, 321 Conn. 135, was not released until after the state had filed its appellee brief, the state devoted several pages in its brief to the defendant's argument that the state had altered its theory of the case. Finally, our consideration of this claim is appropriate because we decide it adversely to the defendant, and the state is, therefore, not prejudiced by its review. See State v. Gaines, 257 Conn. 695, 713 n.13, 778 A.2d 919 (2001).

         The following additional facts and procedural history are relevant to the defendant's due process claim. Prior to the eve of trial, the defendant had been charged in an eight count information dated May 16, 2013. The first five counts of the original information were almost identical to the amended information filed on January 26, 2014, upon which the state ultimately proceeded to trial. In the original information, however, count one charged the defendant with assault in the first degree in that the ‘‘[defendant], with intent to cause serious physical injury to one Jessica Sanchez, did cause serious physical injury to the said Jessica Sanchez with a dangerous instrument, to wit: a motor vehicle . . . .'' In the amended information, the state altered count one to allege a charge of an intentional assault of Nunez and amended count two to allege an assault of Jessica under a theory of transferred intent, i.e., with the intent to cause serious physical injuries to Nunez, he caused serious physical injury to Jessica.

         The original information also contained three additional counts that were deleted from the amended information upon which the case was tried. In count six, the state had charged the defendant with assault in the third degree, alleging that the defendant, with the intent to cause physical injury to Nunez, caused physical injury to Nunez. In count seven, the state had charged the defendant with threatening in the second degree, alleging that the defendant had physically threatened Jessica at or near Washington Avenue and Coleman Street with the intent to place her in fear of imminent serious physical injury. In count eight, the state had charged the defendant with threatening in the second degree, alleging that the defendant had physically threatened Nunez at or near Washington Avenue and Coleman Street with the intent to place him in fear of imminent serious physical injury. The state did not explain at the time it filed the amended information any of its reasons for dropping counts six, seven, and eight. Further, the state did not discuss whether the remaining charges were exclusively applicable to the defendant's conduct in striking Nunez and Jessica with his vehicle.

         At the time the state filed its amended information, the court stated that it understood that the state had amended the information to clarify ‘‘in count two that it's charging [the defendant] with intent to cause physical injury to Edwin Nunez, [he caused] physical injury to [Jessica], by means of a dangerous weapon.'' The court proceeded to ask the defendant if he waived a reading of the information and advisement of rights, to which he responded, through his counsel, in the affirmative, and entered pro form a pleas of not guilty.

         As noted previously, the defendant moved the court to set aside the verdict and for a new trial following the verdict. The defendant argued in support of that motion that his conscious objective to cause serious physical harm to Nunez as charged in counts one and two was legally inconsistent with the mental state of recklessness required to be convicted under count four. The defendant supported his argument by claiming that all of the charged counts implicated the same criminal conduct and the same victim throughout a non bifurcated and ‘‘fast-moving event.'' Further, the defendant claimed that the state's theory of the case was that he was on a ‘‘hunting mission, '' and that, collectively, the evidence tended to support only a theory of intentional assault. In response, the state argued that the jury was free to find the defendant guilty on all counts on the basis of the evidence presented at trial and the charges brought against the defendant in the information.

         With respect to the defendant's argument that the state was not pursuing charges relating to the defendant's postcrash conduct, the court asked the following: ‘‘[Y]ou're not claiming like the State v. King [supra, 149 Conn.App. 361] case that your client or you had no notice that the state was pursuing charges that were both intentional and reckless. You're not claiming that in this case, are you?'' The court immediately followed that question with a more pointed question, asking whether the defendant and counsel ‘‘knew what the charges were, '' to which defense counsel responded, ‘‘[o]f course.''

         On May 15, 2014, the court denied the defendant's motion. In denying that motion, the court reasoned that the defendant was ‘‘well aware that the state was pursuing the different and separate offenses, '' and that he had sufficient notice of the charges brought against him.

         The following principles guide our analyses. ‘‘A fundamental tenet of our due process jurisprudence is that [i]t is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. . . . Accordingly, the United States Supreme Court has explained that [t]o uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused. . . . Reviewing courts, therefore, cannot affirm a criminal conviction based on a theory of guilt that was never presented to the jury in the underlying trial. . . .

         ‘‘Principles of due process do not allow the state, on appeal, to rely on a theory of the case that was never presented at trial. . . . Although we recognize that the finder of fact may consider all of the evidence properly before it, in order for us to uphold the state's theory of the case on appeal, that theory must have been not merely before the jury due to an incidental reference, but as part of a coherent theory of guilt that, upon [review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise cognizable sense. . . . Essentially, the state may not pursue one course of action at trial and later, on appeal, argue that a path [it] rejected should now be open to [it] . . . . To rule otherwise would permit trial by ambuscade. . . . Accordingly, on appeal, the state may not construe evidence adduced at trial to support an entirely different theory of guilt than the one that the state argued at trial. . . . Whether a defendant has received constitutionally sufficient notice of the charges of which he was convicted may be determined by a review of the relevant charging document, the theory on which the case was tried and submitted to the jury, and the trial court's jury instructions regarding the charges.'' (Citations omitted; emphasis added; internal quotation marks omitted.) State v. King, supra, 321 Conn. 148-50.

         We first examine the state's amended information upon which the case was tried. It is well established that an information provides notice to the defendant of the charges of which he may be convicted. See State v. James, 247 Conn. 662, 679, 725 A.2d 316 (1999); State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993); State v. Spigarolo, 210 Conn. 359, 382, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989); see also Practice Book § 36-13 (‘‘[t]he information shall state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated'').

         The state's amended information charged the defendant with multiple counts of intentional assault and reckless endangerment, and did not in any way suggest that they represented alternative theories of liability or that the state did not intend to present all charges to the jury for consideration. The amended information contains five separate counts-one for each offense. Nothing in the amended information explicitly or implicitly indicates that the state intended to prosecute count four as an alternative to criminal liability under counts one and two.

         Importantly, if the defendant had been unclear of the charges brought against him, nothing precluded him from filing a motion for a bill of particulars pursuant to Practice Book § 41-20. See State v. King, supra, 321 Conn. 151. Furthermore, if the defendant truly had believed at the time of trial that certain charges had been brought only as alternative theories of guilty, he presumably would have requested an instruction from the court explaining to the jury that it could not find him guilty of reckless endangerment as to Nunez if it concluded that he was guilty of counts one or two.[6]The defendant did not pursue either of these measures to resolve any potential confusion he may have had with respect to the charged offenses. Thus, the state's amended information tends to suggest that the defendant was on notice that count four sought to impose criminal liability on him for conduct that was distinct from counts one and two.

         We next examine the evidence that the state introduced at trial. In that regard, it is clear that the state introduced evidence that the defendant intentionally assaulted Nunez by crashing his vehicle into him and Jessica, and also that he subsequently exited his vehicle and engaged in conduct that risked causing further serious physical injury to Nunez. Thus, the state introduced evidence that supported all charges listed in the amended information.

         Like in King (2016), it is true that the state in the present case did not present its evidence in a manner that necessarily delineated the charges to which specific evidence or testimony related. Our Supreme Court in King (2016) recognized, however, that a prosecutor's failure to do so ‘‘is not equivalent to a prosecutor who does specify the evidence underlying a charge and then subsequently adopts a different evidentiary justification for that charge.'' Id., 153. Here, as in King (2016), the state did not take any action while presenting its case that would have induced the defendant to refrain from defending against all of the evidence or to believe that the evidence related only to one charge or another. Instead, the state presented evidence of the defendant's entire encounter, which, as previously discussed, evidenced two independent criminal acts.

         In determining the state's theory of the case, examination of the state's closing argument is also an important consideration. See id., 154-55. The manner in which the prosecutor conducted the state's closing argument also did not suggest that the state had intended to prosecute any of the charges as alternatives to each other. Unlike the situation in State v. King, supra, 321 Conn. 155-56, the prosecutor here did not make any statements, ambiguous or otherwise, that could reasonably be construed as framing certain charges in the disjunctive. It is true that the prosecutor spent the bulk of her argument on analyzing the defendant's conduct that formed the bases of the two counts of intentional assault. Indeed, it is likely that the state focused on those charges because they were the most serious charges and the defendant had raised the justification of self-defense arising out of his factual contention that he intentionally had crashed his car into Nunez in order to avoid being shot.

         It is not true, however, that the prosecutor ignored the defendant's postcrash conduct or the reckless endangerment charges during her closing argument. During her closing argument, the prosecutor conveyed to the jury that ‘‘[t]he other thing you have to conclude is that [the defendant] immediately got out of the car and assaulted Edwin Nunez.''[7] If the state was proceeding, as the defendant argues, solely on a theory that he was on a ‘‘hunting mission, '' it would have been unnecessary for the state to prove or for the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.