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State v. Chyung

Supreme Court of Connecticut

April 18, 2017

STATEOF CONNECTICUT
v.
CHIHAN ERIC CHYUNG

          Argued January 18, 2017

          Conrad Ost Seifert, assigned counsel, for the appellant (defendant).

          David J. Smith, senior assistant state's attorney, with whom, on the brief, was Michael Regan, state's attorney, for the appellee (state).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.

          OPINION

          ROGERS, C.J.

         The primary issue that we must decide in this appeal is whether the trial court properly denied the defendant's motion for a judgment of acquittal and for a new trial after the jury rendered legally inconsistent guilty verdicts on charges of murder and of manslaughter in the first degree with a firearm. The state charged the defendant, Chihan Eric Chyung, with murder in violation of General Statutes § 53a-54a and manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a)[1] in connection with the shooting death of his wife, Paige Chyung (victim). After a trial, the jury rendered verdicts of guilty on both charges. Thereafter, the defendant filed a motion for judgment of acquittal and for a new trial contending that the verdicts were legally inconsistent because, to convict the defendant of murder, the jury had to find that he had a specific intent to kill the victim, whereas, to convict him of manslaughter in the first degree, the jury was required to find that he acted recklessly. The trial court denied the motion on the ground that the defendant had waived the claim by failing to request a jury instruction that he could not be convicted of both charges. The trial court also concluded, however, that the verdict of guilty on the manslaughter charge must be vacated pursuant to case law holding that, when a defendant is convicted of both a greater offense and a lesser included offense, thereby violating constitutional double jeopardy principles, the proper remedy is to vacate the conviction on the lesser included offense. After vacating the guilty verdict of manslaughter in the first degree with a firearm, the trial court sentenced the defendant to forty years imprisonment on the murder charge. This appeal followed.[2] We conclude that the trial court improperly determined that the defendant had waived the claim that the guilty verdicts on the charges of murder and manslaughter in the first degree with a firearm were legally inconsistent by failing to request a jury instruction on the issue. Rather, we conclude that legally inconsistent verdicts involve jury error that may be raised for the first time after the verdicts have been returned or on appeal. Because we conclude that the verdicts were legally inconsistent, and because there is no way for the trial court or this court to know which charge the jury found to be supported by the evidence, neither verdict can stand. Accordingly, we conclude that both guilty verdicts must be vacated and the case must be remanded to the trial court for a new trial.

         The jury reasonably could have found the following facts, which support either the guilty verdict on the charge of manslaughter in the first degree with a firearm or the guilty verdict on the charge of murder. The defendant testified that he and the victim, who were married in May, 2009, lived at 257 Norwich Avenue in Norwich. According to the defendant, on the evening of June 2, 2009, they had an argument about the victim's purchase of new tires for her truck. The victim was upset because the defendant told her that she had paid too much for the tires. She left the residence, telling the defendant, ‘‘I can't care if you're here when I get back.'' The defendant and the victim then had several telephone conversations, during which they continued to argue. The defendant ultimately decided that he should leave the residence and he packed a bag with his belongings. He then placed the bag by the kitchen door and waited for the victim to return.

         The defendant testified that the victim returned to the residence at about 7:30 p.m. The defendant and the victim continued to argue, and the defendant decided that he would leave and go to a friend's house in New Haven. He then retrieved his pistol from a nightstand in the second floor bedroom and brought it downstairs to the kitchen, intending to pack it in his bag. He put the bag on the kitchen table and, as he attempted to open the bag by pulling on the zippers, the gun discharged. The defendant testified that he had not known that the gun was loaded. After the gun fired, the defendant looked up and saw the victim, who looked scared. She then fell to the floor. Believing that the victim was dead, the defendant grabbed his bag, went to his truck and drove away from the residence.

         As he was driving, the defendant called a friend and told him that the victim had been shot. The friend told the defendant that he should return to the residence and call 911. The defendant then drove back to the residence, called 911 while still in his truck and reported that he had shot the victim.

         Thomas Lazzaro, a patrol officer with the Norwich Police Department (department), testified that he and other members of the department responded to the defendant's 911 call. Upon arriving at the defendant's residence, the police arrested him. They kicked in the door to the residence and found the victim's body on the kitchen floor. Lazzaro observed that the house was in disarray and that items were ‘‘thrown all over the place . . . .'' In the living room, the victim's purse was on the floor and its contents were strewn ‘‘all over the area.'' Pieces of a broken ice cube tray were found scattered around the first floor and, in the second floor bedroom, Lazzaro observed a broken ashtray.

         Damien Martin, a patrol officer with the department, testified that, after the defendant was given a Miranda warning[3] at the scene of the shooting, he was asked what had happened. The defendant stated that he and the victim had an argument about a fishing pole that he had purchased because the victim was upset about the expense. He also stated that he had been drinking. After deciding to leave the residence, he packed a suitcase and put it on the kitchen table. He then decided to pack his handgun. As he attempted to put the gun into the suitcase, it accidentally fired and struck the victim.

         Amber Levesque testified that she and her boyfriend, Richard Hernandez, lived in an apartment in a building next door to the defendant's residence on the date of the shooting. At approximately 9:30 p.m., she heard a man and a woman arguing in the residence. After approximately twenty minutes, the argument stopped. Levesque then heard the woman scream and, approximately fifteen seconds later, a loud bang. Approximately two minutes after that, she heard a door slam. She then went to bed. Between approximately 11 and 11:30 p.m., Hernandez' mother, who lived in the same apartment, came into the bedroom and said that there were police in front of the defendant's residence. Hernandez testified that, starting at approximately 9:30 p.m., he heard arguing from the defendant's residence that lasted for approximately one-half hour. He then heard a woman scream, followed by a gunshot.

         Frank Evangelista, a physician employed by the Office of the Chief Medical Examiner, testified that he performed an autopsy on the victim. During the autopsy, Evangelista observed a gunshot wound to the victim's forehead and multiple areas of blunt trauma, including two bruises on her left chest, an abrasion on her back, and a bruise on each thigh. There was gunpowder stippling around the head wound, indicating that the gun had been one to three feet away from the victim's head when it was fired. An X-ray showed that the bullet had entered the victim's forehead and traveled to the back of her skull, causing her death.

         Gregory Danas testified for the defendant as an expert in the handling of firearms. Danas testified that the gun that the defendant had fired was a ‘‘model Glock 19 . . . .'' He further testified that, on the basis of his discussions with the defendant about the events leading up to the shooting, ‘‘any time [a] firearm is handled in that fashion, [there] is a high degree of probability, regardless of who's touching the gun, that that gun is going to go off, '' and that it was possible that the discharge was accidental.

         The defendant was charged in a two count substitute information with murder in violation of § 53a-54a and manslaughter in the first degree with a firearm in violation of§ 53a-55a (a). During closing arguments, the state argued that the evidence established that the defendant was guilty of murder because he pointed the gun at the victim and pulled the trigger with the intent to cause her death.[4] The defendant argued that, to the contrary, the evidence showed that the gun discharged because he had handled it carelessly and negligently.

         The jury returned verdicts of guilty on both the charge of murder and the charge of manslaughter in the first degree with a firearm. Thereafter, the defendant filed a motion for judgment of acquittal and for a new trial in which he contended, among other things, that the verdicts were legally inconsistent because the murder conviction required the jury to find that he had acted with the specific intent to cause the victim's death and the conviction on manslaughter in the first degree with a firearm required the jury to find that he had acted recklessly. The trial court denied the motion for a new trial on the ground that the defendant had failed to request a jury instruction that he could not be convicted on both charges. Cf. State v. Kitchens, 299 Conn. 447, 466, 10 A.3d 942 (2011) (defendant waives claim based on improper jury instruction when ‘‘defense counsel acquiesces in the instructions following a meaningful opportunity to review them outside the rush of trial, participates in an on-the-record charge conference designed to allow counsel to identify errors while they still can be remedied and takes no exception after the charge has been delivered''). The court also concluded, however, that, under the circumstances of this case, the charge of manslaughter in the first degree with a firearm was a lesser included offense of the murder charge. Accordingly, the court concluded that, to protect the defendant's constitutional right not to be subject to multiple punishments for the same offense under the double jeopardy clause of the fifth amendment to the United States constitution, the defendant's manslaughter conviction must be vacated. See State v. Polanco, 308 Conn. 242, 260, 61 A.3d 1084 (2013) (‘‘when a defendant is convicted of greater and lesser included offenses, the trial court shall vacate the conviction for the lesser offense''). Thereafter, the trial court rendered judgment in accordance with the guilty verdict on the murder charge.

         This appeal followed. The defendant contends that the trial court improperly denied his motion for a judgment of acquittal and for a new trial on the ground that he had failed to request a jury instruction that he could not be convicted of both the charge of murder and the charge of manslaughter in the first degree with a firearm. The defendant further contends that the guilty verdicts should be vacated because they were legally inconsistent. In addition, the defendant contends that the trial court improperly allowed the state to present certain evidence of uncharged misconduct. We agree with the defendant's position that the trial court improperly declined to review his claim that the verdicts were legally inconsistent and that the verdicts must be vacated. We reject, however, his evidentiary claim.

         I

         We first address the defendant's claim that his convictions for manslaughter in the first degree with a firearm and murder must be vacated because: (1) they were legally inconsistent; and (2) contrary to the trial court's determination, he was not required to request a jury instruction that he could not be convicted of both offenses to preserve the issue for postverdict consideration. The following legal principles guide our analysis of this claim. ‘‘A claim of legally inconsistent convictions, also referred to asmutually exclusive convictions, arises 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. . . . In response to such a claim, we look carefully to determine whether the existence of the essential elements for one offense negates the existence of [one or more] essential elements for another offense of which the defendant also stands convicted. If that is the case, the [convictions] are legally inconsistent and cannot withstand challenge. . . . Whether two convictions are mutually exclusive presents a question of law, over which our review is plenary.'' (Citations omitted; internal quotation marks omitted.) State v. Nash, 316 Conn. 651, 659, 114 A.3d 128 (2015).

         This court previously has recognized that ‘‘the statutory definitions of ‘intentionally'[5] and ‘recklessly'[6] are mutually exclusive and inconsistent. Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious object to cause a particular result.'' (Footnotes added; internal quotation marks omitted.) State v. King, 216 Conn. 585, 593-94, 583 A.2d 896 (1990), on appeal after remand, 218 Conn. 747, 591 A.2d 813 (1991). Rather, one acts recklessly when one ‘‘is aware of and consciously disregards a substantial and unjustifiable risk that [a particular] result will occur . . . .'' General Statutes § 53a-3 (13). Thus, a defendant cannot ‘‘simultaneously [act] intentionally and recklessly with regard to the same act and the same result, i.e., the injury to the victim.'' State v. King, supra, 593. Accordingly, jury verdicts convicting the defendant both on a charge requiring proof of specific intent and on a charge requiring proof of recklessness, with respect to the same act and the same result, are legally inconsistent and cannot stand. Id., 594.

         When a jury has rendered legally inconsistent verdicts, there is no way for the reviewing court to know which charge the jury found to be supported by the evidence. Id.[7] Accordingly, the court must vacate both convictions and remand the case to the trial court for a new trial. Id., 595.

         In the present case, the jury's verdict of guilty on the charge of murder required the jury to find that the defendant acted with the specific intent to cause the death of the victim. See General Statutes § 53a-54a. On the other hand, the jury's verdict of guilty on the count of manslaughter in the first degree required the jury to find that the defendant acted recklessly. See General Statutes § 53a-55a (a). Because a defendant cannot simultaneously act intentionally and recklessly with respect to the same act and the same result, we conclude that the jury verdicts were legally inconsistent.

         We further conclude that the trial court improperly determined that the defendant's claim that the verdicts were legally inconsistent could not be raised for the first time in a motion for a new trial, but should have been raised by way of a request for a jury instruction that the defendant could not be convicted of both offenses. The defendant contends that no such instruction was required because the inconsistent jury verdicts were the result of an unforeseeable misapplication by the jury of proper jury instructions.[8] The state contends that, to the contrary, the trial court's determination was correct under State v. Kitchens, supra, 299 Conn. 466. We conclude that the trial court should have instructed the jury that it could not find the defendant guilty of both offenses and the defendant's failure to request such an instruction did not bar him from subsequently challenging the legally inconsistent verdicts in a motion for a new trial.

         The proper procedure for raising a claim that guilty verdicts are legally inconsistent has never been squarely addressed by this court. Our research has revealed no Connecticut cases, however, that support the proposition that, when the state has charged the defendant with two offenses relating to the same act and the same result, and requiring mutually exclusive states of mind, the defendant is required to request a jury instruction that he cannot be found guilty of both offenses in order to preserve the issue of legally inconsistent verdicts for postverdict consideration by the trial court and review on appeal.[9] For the following reasons, we now conclude that the defendant is not required to do so.

         This court previously has recognized that ‘‘[m]utually exclusive [convictions] are the result of two positive findings of fact that cannot logically coexist.'' (Internal quotation marks omitted.) State v. Arroyo, 292 Conn. 558, 584 n.21, 973 A.2d 1254 (2009). Thus, the state and the trial court must be presumed to know both on the basis of logic and on the basis of their legal training that, when the state has tried a case on the theory that the mutually exclusive offenses with which the defendant has been charged relate to the same act and the same result, the jury cannot properly render guilty verdicts on both charges. See People v. Delgado, Docket No. 13-CA-2024, 2016 WL 7009119, *3 (Colo.App. 2016) (because it is manifestly obvious that defendant may not be convicted on charges that are legally inconsistent, trial court's acceptance of legally inconsistent verdicts is plain error).[10] Accordingly, this situation is distinguishable from the ordinary situation in which a defendant raises an unpreserved claim of instructional error. Ordinarily, such a claim involves a logical and consistent verdict that was based on an improper charge. When a jury returns legally inconsistent guilty verdicts, however, it has returned illogical and inconsistent verdicts that were based on a proper charge. Therefore, the claim is more properly characterized as involving jury error than instructional error. Cf. People v. Ousley, 297 Ill.App.3d 758, 763-64, 697 N.E.2d 926 (defendant's claim that verdicts were legally inconsistent did not constitute claim of instructional error), cert. denied, 181 Ill.2d 583, 706 N.E.2d 501 (1998). Accordingly, a defendant's first time, postverdict claim of legally inconsistent verdicts cannot unfairly surprise either the state or the trial court. Cf. Remillard v. Remil-lard, 297 Conn. 345, 351-52, 999 A.2d 713 (2010) (rationale for rule requiring preservation of claim at trial before claim will be reviewed on appeal is to prevent ‘‘trial by ambuscade, which is unfair to both the trial court and the opposing party'').

         In this regard, it is significant that, when the charging document and the state's presentation of evidence are sufficient to put the defendant on notice that he may be convicted of multiple offenses involving mutually exclusive states of mind on the theory that the offenses relate to different acts or results, we have never required the state to request a jury instruction that the defendant may be convicted of multiple charges in order to avoid unfairly surprising the defendant with multiple guilty verdicts. See State v. King, 321 Conn. 135, 154, 136 A.3d 1210 (2016) (when charging document and state's presentation of evidence were sufficient to put defendant on notice of state's theory that two charges requiring mutually inconsistent mental states related to different acts and different results, defendant could be convicted of both charges even though ‘‘the trial court never explicitly informed the jury that it could deliver a guilty verdict on both charges''); cf. State v. Spikes, 111 Conn.App. 543, 553, 961 A.2d 426 (2008) (‘‘[w]hen the nature of the crime as charged in the information and the content of the instruction to the jury differ only to the extent that they describe two different methods of committing the same offense, the defendant is able to establish an infringement of constitutional rights only if he can demonstrate unfair surprise or prejudice''), cert. denied, 291 Conn. 901, 967 A.2d 114, cert. denied, 558 U.S. 898, 130 S.Ct. 249, 175 L.Ed.2d 170 (2009). Under the well established principle that ‘‘[w]hat's sauce for the goose is sauce for the gander''; State v. Fernandez, 5 Conn.App. 40, 52, 496 A.2d 533 (1985);[11]this bolsters our conclusion that, when the defendant has been charged with two offenses requiring mutually exclusive states of mind, the manner in which the state has presented the evidence is sufficient to put all parties on notice as to whether the offenses relate to the same act and result. Thus, when the state has tried the case on the theory that multiple mutually inconsistent offenses relate to the same act and the same result, the defendant's first time, postverdict challenge to legally inconsistent verdicts cannot result in unfair surprise to the state or to the trial court. Rather, it is the legally inconsistent verdicts themselves that cause surprise. We conclude, therefore, that a claim of legally inconsistent verdicts is not a claim of instructional error subject to the constraints of Kitchens.

         Nevertheless, although we conclude that a defendant's first time, postverdict challenge to legally inconsistent verdicts is permissible because it does not result in unfair surprise to the prosecutor and the trial court and because the verdicts are the result of jury error, we also conclude that, to avoid the risk of a jury mistake, the better practice is for the trial court to instruct the jury on the issue in the initial charge.[12] We further conclude that, regardless of whether such an instruction has been given, if the jury renders legally inconsistent guilty verdicts, either the defendant or the state should object to the verdicts before the jury has been discharged, so that the jury may be properly instructed and continue its deliberations.[13] See General Statutes § 52-223.[14]

         Because of the important constitutional due process implications of legally inconsistent guilty verdicts, however, we conclude that, even if the defendant and the state have failed to object to the verdicts before the jury is discharged, that failure does not bar the defendant from raising the claim in a motion for a new trial.[15]See State v.King, supra, 321 Conn. 139 (defendant raised claim of legally inconsistent verdicts by filing motion for new trial); cf. Ginsberg v.Fusaro, 225 Conn. 420, 426, 623 A.2d 1014 (1993) (‘‘we have never held that a party is obliged to request reconsideration [of the verdict by the jury pursuant to § 52-223] as a prerequisite to challenging the validity of the verdict on a motion to set aside the verdict'' in civil case). We conclude, therefore, that the defendant's failure to request a jury instruction that the jury could not find him guilty of both the charge of manslaughter in the first degree and the charge of murder did not bar him from raising the ...


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