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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