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State v. Ruiz-Pacheco

Court of Appeals of Connecticut

September 25, 2018

STATE OF CONNECTICUT
v.
JOESENIER RUIZ-PACHECO

          Argued November 28, 2017

         Procedural History

         Substitute information charging the defendant with four counts of the crime of assault in the first degree, and two counts each of the crimes of attempt to commit murder and conspiracy to commit assault in the first degree, brought to the Superior Court in the judicial district of Danbury and tried to the jury before Eschuk, J.; verdict of guilty of four counts of assault in the first degree, two counts of conspiracy to commit assault in the first degree and one count of attempt to commit murder; thereafter, the court vacated the verdict as to one count of conspiracy to commit assault in the first degree and rendered judgment in accordance with the verdict, from which the defendant appealed. Affirmed.

          Pamela S. Nagy, assistant public defender, for the appellant (defendant).

          Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, Warren C. Murray, supervisory assistant state's attorney, and Laurie N. Feldman, special deputy assistant state's attorney, for the appellee (state).

          Prescott, Elgo and Harper, Js.

          OPINION

          ELGO, J.

         The defendant, Joesenier Ruiz-Pacheco, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the first degree as a principal in violation of General Statutes § 53a-59 (a) (1), two counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-59 (a) (1) and 53a-8, one count of attempt to commit murder in violation of General Statutes § 53a-54, and one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48.[1] On appeal, the defendant claims that (1) his conviction of the assault counts violates the double jeopardy clause; (2) the jury instructions on attempted murder were improper; (3) the court's repeated instruction that the jury should consider the lesser included offenses even if the state failed to disprove self-defense on the greater offenses misled the jury; and (4) he was deprived of a fair trial due to prosecutorial improprieties that affected the critical issues of self-defense and third-party culpability. We affirm the judgment of the trial court.

         The following facts, which the jury reasonably could have found, and procedural history are relevant to the defendant's appeal. On November 30, 2012, the defendant went to El Milenio, a nightclub in Danbury, with his brother, Eliezer, and his friends, Raymond Martinez and Eiliana Martinez. A group of women, Dumilka Adames, Samantha Medina, Petra Mendez, Carina Amaro, and Rita Santos, also attended the nightclub. At approximately 2 a.m. on December 1, 2012, the nightclub closed and the group of women walked to their cars, which were parked in the adjacent C-Town grocery store parking lot. Kenneth Tucker, who had attended a different nightclub, was waiting in the parking lot to meet up with the group of women. The defendant and his associates also walked to the C-Town grocery store parking lot. Adames got into Santos' car with Tucker. Medina and Mendez got into Amaro's car.

         At some point, the defendant and Eliezer approached Amaro's car. Eliezer and Mendez exchanged words. Medina, the defendant's former girlfriend, got out of the car and argued with him. The defendant then punched Medina in the face and put her in a headlock. Other people in the parking lot, including Tucker and Luis Rodriguez, another bystander, saw the defendant put Medina in a headlock. Medina yelled at the defendant to let her go. Tucker punched the defendant, and the defendant released Medina from the headlock. Tucker, the defendant and Eliezer then immediately began to fight with their fists. Rodriguez also entered the fray after he saw the defendant hit Medina. At some point during the fight, the defendant and Eliezer went to their car to arm themselves; Eliezer obtained a knife for himself from the car and handed a knife to the defendant. Tucker and Rodriguez were unarmed. Throughout the course of the fight in the parking lot, the defendant and Eliezer stabbed Tucker multiple times. The defendant also stabbed Rodriguez two or three times. When the defendant and Eliezer walked away, Rodriguez said something to the brothers. In response, the defendant and Eliezer ran after Rodriguez, and Eliezer stabbed Rodriguez in the back. After Eliezer stabbed him, Rodriguez tumbled down a portion of grass between the parking lot and the sidewalk. The defendant then approached Rodriguez, who was in the street unable to move as a result of his injuries, stabbed him in the left side of the chest and said: ‘‘This is for hitting my brother.'' The defendant and Eliezer thereafter fled the scene together in a vehicle. Two off-duty police officers witnessed a portion of the fight and rendered medical assistance to Rodriguez after he was stabbed. Rodriguez sustained five stab wounds and Tucker sustained three stab wounds.

         The defendant was arrested later that night. The police took the defendant's statement in which the defendant admitted that he ‘‘stabbed a person in self-defense . . . .'' The state charged the defendant with two counts of assault in the first degree as a principal in violation of § 53a-59 (a) (1), two counts of assault in the first degree as an accessory in violation of §§ 53a-59 (a) (1) and 53a-8, two counts of attempted murder in violation of § 53a-54, and two counts of conspiracy to commit first degree assault in violation of §§ 53a-59 (a) (1) and 53a-48. At trial, the state presented eyewitness testimony, including that of Mendez, Adames, Tucker, Rodriguez, Liybin Fernandez, Officer Kristin Lindstrom, and Officer David Dubord. Following a jury trial, the defendant was found guilty on all counts except for one count of attempted murder (count five), and the jury's guilty verdict on one count of conspiracy to commit assault in the first degree (count eight) was vacated at sentencing.[2] This appeal followed.

         I

         The defendant first claims that his conviction of assault in the first degree as a principal pursuant to counts two and six of the information, and assault in the first degree as an accessory pursuant to counts three and seven of the information, violates his fifth and fourteenth amendment right against double jeopardy. Accordingly, he contends that his conviction of the two counts of assault as an accessory should be vacated. The state argues that because the defendant's conviction of the four counts was based on different acts, his double jeopardy rights were not violated. We agree with the state.

         The following additional facts are relevant to our resolution of the defendant's claim. The information in the present case charged the defendant with four separate counts of first degree assault. In relevant part, the information contained one count each of assault in the first degree as a principal and assault in the first degree as an accessory with respect to the stabbing injuries suffered by Rodriguez, [3] and separate counts of assault in the first degree as a principal and assault in the first degree as an accessory with respect to the stabbing injuries sustained by Tucker.[4] The defendant never sought a bill of particulars.

         In discussing the nature of the charges in its closing argument, the state argued that there were many possible combinations whenever there are at least two persons stabbing two victims and that multiple counts were appropriate in this case ‘‘to accommodate all those situations.'' The state argued that there was evidence that both the defendant and his brother, Eliezer, armed themselves with knives during the conflict and that both victims were stabbed multiple times. According to the prosecutor, the jury had the obligation of sorting out the conflicting evidence presented and to determine whether the defendant himself had stabbed both victims or had helped his brother stab the victims ‘‘just by being there with the knife himself.'' The state did not expressly rule out that some combination was also possible. In fact, at no time did the state suggest to the jury that it was proceeding on a theory of alternative liability or that the jury was limited to finding the defendant guilty either solely as a principal or solely as an accessory with respect to the two victims.

         In her closing argument, defense counsel also noted the conflicting evidence that existed with respect to who had stabbed each of the victims and argued that it was the jury's duty to reach a determination on the basis of the evidence before it. The defense theory was that it was Eliezer who stabbed the victims, not the defendant, but that if the jury found otherwise, it should still find the defendant not guilty because he had acted in self-defense or in defense of others. At no point did the defense argue to the jury that if it found the defendant guilty of assaulting the victims as a principal, it could not also find him guilty of acting as an accessory.

         In its instructions to the jury regarding the charges against the defendant, the court told the jury that the defendant was ‘‘entitled to and must be given by you a separate and independent determination of whether he's guilty or not guilty as to each of the counts'' charged, and that ‘‘[e]ach of the counts charged is a separate crime.'' The defendant did not object to the instruction given by the court or ask for clarification about whether he potentially could be found guilty on all counts or whether certain counts were pleaded only in the alternative.

         With that background in mind, we address the review-ability of the defendant's claim. The defendant acknowledges that he failed to raise any double jeopardy claim before the trial court and, thus, seeks review of his claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Golding provides 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 . . . exists and . . . 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. In the absence of any one of these conditions, the defendant's claim will fail.'' (Emphasis omitted; footnote omitted.) Id., 239-40; see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding). We conclude that the first two prongs of the Golding test have been met because the record before us is adequate to review the defendant's claim and a double jeopardy claim raises an issue of constitutional magnitude. See State v. Estrada, 71 Conn.App. 344, 357, 802 A.2d 873, cert. denied, 261 Conn. 934, 806 A.2d 1068 (2002). We, thus, direct our attention to the third prong and whether the defendant's claimed double jeopardy violation exists.

         Before turning to our discussion of the law relative to the defendant's double jeopardy claim, it is important to emphasize what the defendant is not claiming. He is not claiming that there was insufficient evidence from which the jury could find him guilty, either as a principal or as an accessory, of assaulting the two victims with the intent to cause serious bodily injury. In other words, he has not argued that there was insufficient evidence from which the jury could conclude that he stabbed the two victims and that he engaged in conduct with the intent to aid Eliezer in Eliezer's assault of each of the victims. The claim he makes on appeal is simply that it is constitutionally impermissible under the facts of this case to allow his conviction of multiple counts of assault as to each victim to stand because, in his view, doing so would result in his being punished twice for the same act.

         ‘‘A defendant's double jeopardy claim presents a question of law, over which our review is plenary. . . . The double jeopardy 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 prohibits 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. Porter, 328 Conn. 648, 654-55, 182 A.3d 625 (2018).[5]

         In analyzing a double jeopardy claim arising in the context of a single trial, we apply a well established two step process. ‘‘First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.'' (Internal quotation marks omitted.) State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012), cert. denied, 569 U.S. 918, 133 S.Ct. 1804, 185 L.Ed.2d 811 (2013).

         In State v. Porter, supra, 328 Conn. 648, our Supreme Court clarified the type of evidence an appellate court should consider in applying this two step process. In evaluating the first step, i.e., whether the charges arise out of the same act or transaction, ‘‘we look to the evidence at trial and to the state's theory of the case . . . in addition to the information against the defendant, as amplified by the bill of particulars. . . . If it is determined that the charges arise out of the same act or transaction, then the court proceeds to step two, where it must be determined whether the charged crimes are the same offense. . . . [In considering the] second step . . . we look only to the information and bill of particulars-as opposed to the evidence presented at trial . . . . Because double jeopardy attaches only if both steps are satisfied . . . a determination that the offenses did not stem from the same act or transaction renders analysis under the second step unnecessary. (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 662. Because we conclude in the present case that the defendant's double jeopardy claim founders on the first step of the analysis, it is unnecessary to consider whether the charged crimes are the same offense under the rubric set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

         ‘‘[D]istinct repetitions of a prohibited act, however closely they may follow each other . . . may be punished 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 punishable by the [statute].'' (Emphasis altered; internal quotation marks omitted.) State v. Brown, 299 Conn. 640, 652, 11 A.3d 663 (2011). Accordingly, although the counts in an information may rely on factual allegations arising from one overarching criminal event, if it is possible to isolate distinct acts that occurred during that event that constitute separate and severable criminal offenses, prosecution of those offenses will not implicate double jeopardy. ‘‘[A]n appellate court reviewing an unpreserved claim of double jeopardy must examine the evidence to determine whether the alleged transaction logically can encompass separate acts, which in turn form the basis of separate convictions.'' State v. Porter, 167 Conn.App. 281, 290-91, 142 A.3d 1216 (2016), aff'd, 328 Conn. 648, 182 A.3d 625 (2018).

         By way of example, in Brown, the defendant and several coconspirators participated in a scheme to rob a suspected drug dealer that ended with that dealer being killed by the defendant. State v. Brown, supra, 299 Conn. 644-46. The defendant was convicted of felony murder and murder, which were merged prior to sentencing, and robbery in the first degree, attempt to commit robbery in the first degree, conspiracy to commit robbery in the first degree, and other crimes related to the use of a firearm. Id., 646. On appeal, the defendant raised an unpreserved double jeopardy claim, arguing that his conviction of both robbery and attempted robbery arose out of the same transaction, and, therefore, his sentence for attempted robbery should be vacated. Id., 650. The court disagreed because the evidence presented at trial showed that acts constituting an attempted robbery reasonably could be isolated from other acts constituting a separate robbery and, therefore, punishing the defendant for both crimes did not violate the constitution. Id., 654.

         Specifically, the court concluded that the jury reasonably could have found, on the basis of the evidence presented, that the attempted robbery had occurred when the victim was first confronted in his car by the defendant's three coconspirators, one of whom pointed a gun at his head. Id., 653. Following a struggle for control of the gun, the victim escaped and began to run down the street. Id. The court found that the actions up to that point constituted a completed attempted robbery. Id. The defendant, who had run after the victim when he escaped from the car, was able to catch him when the victim tripped and fell. The defendant then shot the victim in the head and went through the victim's pockets, which the court viewed as constituting a separate and distinct act of robbery. Thus, the court concluded that in the course of the single criminal conspiracy, the defendant had participated in two separate and severable crimes that happened close together in both time and physical proximity-an attempted robbery as an accessory and a robbery acting as the principal. Id., 653-54.

         The double jeopardy analysis in the present case is, at least at first blush, complicated by the fact that all the stabbing injuries to the victims occurred within a very short duration of each other, and that the defendant was charged with having committed an assault of each of the victims and as an accessory to an assault of each of the victims by Eliezer. It is true that ‘‘[t]his state . . . long ago adopted the rule that there is no practical significance in being labeled an accessory or a principal for the purpose of determining criminal responsibility. . . . Under the modern approach, a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. . . . [T]here is no such crime as being an accessory . . . . The accessory statute merely provides alternate means by which a substantive crime may be committed.'' (Citations omitted; internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 340-41, 696 A.2d 944 (1997).

         Section 53a-8 (a) provides in relevant part that ‘‘[a] person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct . . . .'' To intentionally aid someone means to be ‘‘more than a mere inactive companion''; (internal quotation marks omitted) State v. Harris, 32 Conn.App. 831, 841, 632 A.2d 50 (1993), appeal dismissed, 230 Conn. 347, 644 A.2d 911 (1994); but ‘‘to do something purposely'' in order to ‘‘support, help, assist or strengthen'' them. (Internal quotation marks omitted.) Id., 841 n.10. Although accessorial liability for an assault cannot be based solely on a person's presence at the scene, if there is evidence that the person was not merely a witness but also participated in the assault, a reasonable inference may be drawn that the participation aided the principal assailant by, for example, preventing the victim from more easily escaping the fight or by making the victim more vulnerable to the principal assailant's assault. See State v. Raynor, 175 Conn.App. 409, 431, 167 A.3d 1076 (in challenge by defendant to sufficiency of evidence supporting conviction of first degree assault as accessory, court concluded jury reasonably could have inferred from evidence of defendant's presence at brawl with gun and participation in physical beating of victim prior to his shooting that defendant aided principal by preventing victim from leaving area and helping immobile victim before he was shot), cert. granted on other grounds, 327 Conn. 969, 173 A.3d 952 (2017).

         Although it is indisputable that a defendant could not be punished for acting as both a principal and accessory in the commission of a single criminal act, the prohibition against double jeopardy is not always automatically violated simply because of contemporaneous convictions of the same offense as both a principal and as an accessory. If, for example, a jury reasonably could find on the basis of the evidence presented that each charged offense was the result of a distinct act of independent legal significance-one committed as a principal and another as an accessory-double jeopardy is not implicated. Because the defendant in the present case was convicted on separate counts of assaulting each of the victims both as a principal and as an accessory, we look to the evidence and the state's theory of the case to determine whether the jury could have reasonably concluded that separate acts underlie each conviction or whether the defendant is being twice punished for the same act.

         A

         We first consider whether, with respect to the convictions arising out of the stabbing injuries to Rodriguez, the defendant has demonstrated that the jury could not reasonably have concluded that two distinct acts of criminal conduct were committed that would support its findings of guilt on separate counts alleging first degree assault as a principal and first degree assault as an accessory. We conclude that the defendant has failed to meet this burden.

         The evidence at trial reasonably can be construed as establishing at least three separate stabbing incidents involving Rodriguez. First, during the fracas that ensued after Rodriguez intervened to stop the altercation between the defendant and Medina, the defendant stabbed Rodriguez. Second, Eliezer, who also was armed with a knife, then stabbed Rodriguez in the back. Third, after Rodriguez tried to leave the initial skirmish, the defendant pursued Rodriguez into the street and stabbed him again.

         The jury, thus, reasonably could have predicated its finding that the defendant committed assault in the first degree as a principal either on the basis of the first or third of these stabbing incidents, each of which was completed by the defendant himself. Even if the defendant were able to convinceus that the relatively simultaneous stabbings of Rodriguez by the defendant and Eliezer during the initial outbreak of violence should be treated a single act for purposes of double jeopardy, an argument that we reject for reasons we discuss in addressing the injuries to Tucker, there is no doubt that the subsequent stabbing of Rodriguez by the defendant that occurred after Rodriguez left the initial brawl was a criminal act distinct and separate from the stabbings initially inflicted on Rodriguez by the defendant and his brother.

         Furthermore, the jury's finding that the defendant engaged in an assault in the first degree as an accessory could have been predicated on his having aided Eliezer in the second act of stabbing Rodriguez. The jury reasonably could have concluded that the defendant aided and encouraged Eliezer's assault of Rodriguez in any number of ways, including by helping Eliezer to arm himself with a knife and through his own participation in the fight, making it easier for Eliezer to wound Rodriguez.[6] See id. (defendant's participation in fight evinces intent to aid perpetrator in assault and supports jury's finding of accessorial liability).

         Moreover, as we previously stated, we consider the state's theory of the case in our analysis of whether the alleged transaction logically can encompass separate acts. See State v. Porter, supra, 328 Conn. 661. To the extent that the defendant contends that the state presented the two charges of assault in the first degree as a principal and an accessory as alternative theories of liability, we reject that claim. The state argued that both victims were stabbed multiple times and presented evidence of both assailants stabbing each victim. The state also argued that the evidence supported a finding that the defendant acted as an accessory ‘‘just by being there with the knife himself.'' From the very beginning of trial, the information contained four separate and distinct counts for each charge. At no time did the state suggest to the jury that the charges were alternative theories of liability. Furthermore, the court's jury instruction regarding the four charges reiterated that each charge was separate and distinct, rather than charges in the alternative. Although the trial court did not specifically articulate that the jury could deliver a guilty verdict as to each of the charges, it did not preclude the jury from making such a finding. See State v. King, 321 Conn. 135, 154, 136 A.3d 1210 (2016) (‘‘[a]lthough . . . the trial court never explicitly informed the jury that it could deliver a guilty verdict on both charges, it also never instructed the jury that it could find the defendant guilty only on one charge but not the other'').

         In sum, we conclude with respect to the injuries inflicted on Rodriguez that the acts of stabbing were susceptible of separation into distinct criminal acts for which the defendant could be punished without offending principles of double jeopardy. See State v. Brown, supra, 299 Conn. 654. Furthermore, such theory comports with the state's theory presented at trial. The defendant has presented no legal precedent that would compel an opposite conclusion. Accordingly, we reject the defendant's claim that his conviction of assault in the first degree as an accessory, as charged in count three of the information, should have been vacated by the trial court because it violated double jeopardy principles.

         B

         We turn next to the evidence pertaining to the stabbing injuries inflicted on Tucker, which we acknowledge presents a closer case from a double jeopardy perspective than the assault on Rodriguez because, unlike Rodriguez, all three stabs inflicted on Tucker occurred closer in both proximity and time. Nevertheless, on the basis of our review of the available evidence, we conclude that the jury reasonably could have determined that the defendant was guilty both as a principal actor for the stab or stabs that he personally inflicted on Tucker and as an accessorial actor for intentionally aiding the nearly simultaneous stab or stabs that Eliezer directly inflicted on Tucker.

         The defendant argues that if he had acted alone, he could not have been convicted of separate counts of assault on Tucker on the basis of each individual stab that he inflicted during the short duration of the fight, and that the same rationale should bar his conviction for multiple stabs that were inflicted by himself and by an accomplice. In making this argument, the defendant relies on this court's decision in State v. Nixon, 92 Conn.App. 586, 597, 886 A.2d 475 (2005), in which we held that the conviction of two counts of assault in the second degree arising out of multiple stab wounds inflicted on a single victim during a continuous and uninterrupted attack violated the prohibition against double jeopardy. Nixon did not address, however, the scenario at issue here, in which more than one perpetrator each assaulted a victim within close proximity in time and space. We conclude that Nixon is not applicable to the scenario presented in the present case.

         The defendant argues that Nixon is still controlling despite the fact that it involved only one criminal perpetrator. He does so by relying on the notion that courts generally make no legal distinction between accessorial liability and liability as a principal. See State v. Gamble, 119 Conn.App. 287, 297, 987 A.2d 1049, cert. denied, 295 Conn. 915, 950 A.2d 867 (2010). From that doctrinal basis, he asserts that the presence of multiple assailants should have no effect on the application of Nixon. This argument, however, fails to recognize that multiple convictions for the same crime are permitted if they are based on distinct acts that may be performed by more than one person rather than the type of rapid succession of multiple blows by a single perpetrator, on which Nixon was decided.

         It is particularly noteworthy that the defendant does not argue that double jeopardy bars his conviction as a principal for the stabbing of Tucker and as an accessory to the stabbing of Rodriguez, despite those stabbings also having quickly occurred within the context of the same melee. The defendant thus seems tacitly to acknowledge that he properly may be held criminally liable for the actions of his accomplice against a separate victim. It would be illogical to conclude that he would not be liable to the same degree simply on the happenstance that his accomplice targets the same victim that he himself has just assaulted or is simultaneously assaulting. In short, we find the defendant's argument, which is based on his interpretation and conflation of Nixon and Gamble, unpersuasive.

         This court having resolved that argument, the evidence before the jury was that Tucker was stabbed multiple times during the initial fray. There was evidence that both the defendant and Eliezer were armed with knives. The jury was free to resolve conflicting evidence by concluding that Tucker's injuries were not inflicted by a single assailant, and that both the defendant and Eliezer stabbed Tucker. Under such a scenario, the jury reasonably could have found the defendant liable for assault in the first degree on the basis of his own stabbing of Tucker. Moreover, as it did with Rodriguez, the jury also could have found the defendant liable as an accessory for Eliezer's stabbing of Tucker, a contemporaneous yet separate assault with independent legal significance because the defendant engaged in conduct with the intent to aid Eliezer's assault.[7] In sum, because the defendant's multiple punishments for assault as to each victim were premised not on a single criminal act but distinct repetitions of the same crime, the court was not constitutionally required to vacate his conviction of two counts of assault in the first degree as an accessory. Because the defendant has not demonstrated that a double jeopardy violation exists, he cannot prevail under the third prong of Golding.

         II

         The defendant next claims that the court improperly instructed the jury on attempted murder and consequently deprived him of a fair trial. The defendant contends that the court's instructions on attempted murder improperly permitted the jury to find him guilty if it found that he had the general intent to fight with a knife without also finding that he had the specific intent to cause death. Specifically, the defendant argues that the court misled the jury by utilizing the phrase ‘‘engaged in anything'' in three instances, reading the full statutory definition of general and specific intent, and failing to adequately define the substantial step element.

         The defendant acknowledges that he did not file a request to charge on attempted murder. Furthermore, the defendant did not take exception to the trial court's instructions as given. Nevertheless, the defendant argues that the unpreserved claim of instructional error is reviewable under Golding because it implicates his constitutional right to have the jury properly instructed on all elements of an offense and the record is adequate for review. See part I of this opinion. The state does not dispute that the first two prongs of Golding have been satisfied with respect to this claim, and the state did not assert a waiver pursuant to State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011). We agree because the record is adequate for review, and, when intent is an element of a crime, a trial court's failure to instruct the jury properly with respect to intent implicates the due process rights of the accused. See, e.g., State v. DeJesus, 260 Conn. 466, 472-73, 797 A.2d 1101 (2002). We conclude, however, that the defendant cannot prevail under Golding's third prong.

         ‘‘Our standard of review for claims of instructional impropriety is well established. The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . . . . When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety . . . and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party . . . . In this inquiry we focus on the substance of the charge rather than the form of what was said not only in light of the entire charge, but also within the context of the entire trial. . . . Moreover, as to unpreserved claims of constitutional error in jury instructions, we have stated that under the third prong of Golding, [a] defendant may prevail . . . only if . . . it is reasonably possible that the jury was misled . . . .'' (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 179, 920 A.2d 236 (2007). ‘‘[I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . 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 microscopic 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. Hampton, 293 Conn. 435, 452-53, 988 A.2d 167 (2009).

         It is well established that the charge of attempted murder requires the state to prove beyond a reasonable doubt that the defendant had the specific intent to cause the death of another person.[8] State v. Griggs, 288 Conn. 116, 130-31, 951 A.2d 531 (2008). We turn to a review of the challenged jury instruction to determine whether it is reasonably possible that the jury was misled.

         The trial court instructed the jury on intent as follows: ‘‘The question of intent: Intent relates to the condition of the mind of the person who commits the act, his or her purpose in doing it. The law recognizes two types of intent; general intent and specific intent, but each of the crimes charged here are crimes of specific intent, so you do not need to concern yourself with what general intent means.

         ‘‘Specific intent is the intent to achieve a specific result. A person acts intentionally, with respect to a result, when his or her conscious objective is to cause such result. What the ...


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