Argued
March 4, 2019
Procedural
History
Substitute
information charging the defendant with two counts of the
crime of manslaughter in the first degree, and with the
crimes of misconduct with a motor vehicle, risk of injury to
a child, and evasion of responsibility in the operation of a
motor vehicle, brought to the Superior Court in the judicial
district of Fairfield, geographical area number two, and
tried to the jury before Kavanewsky, J.; verdict and
judgment of guilty; thereafter, the court vacated the
conviction as to one count of manslaughter in the first
degree, and the defendant appealed to this court.
Reversed in part; further proceedings.
Laila
M. G. Haswell, senior assistant public defender, for the
appellant (defendant).
Denise
B. Smoker, senior assistant state's attorney, with whom,
on the brief, were John C. Smriga, state's attorney, and
Marc R. Durso, senior assistant state's attorney, for the
appellee (state).
Lavine, Bright and Bear, Js.
OPINION
BRIGHT, J.
The
defendant, Patricia Daniels, appeals from the judgment of
conviction, rendered by the trial court following a jury
trial, of manslaughter in the first degree in violation of
General Statutes § 53a-55 (a) (3) (reckless
manslaughter) and misconduct with a motor vehicle in
violation of General Statutes § 53a-57 (a) (criminally
negligent operation).[1] The defendant also had been convicted of
manslaughter in the first degree in violation of §
53a-55 (a) (1) (intentional manslaughter), but at sentencing
the trial court vacated her conviction of that charge. On
appeal, the defendant claims that (1) the jury's verdict
was legally inconsistent because each of these crimes
requires a mutually exclusive mental state, and (2) the court
erred in failing to exclude testimonial hearsay. We agree
that the verdict is legally inconsistent, and, therefore, we
reverse in part the judgment of the trial court.
The
following facts, as reasonably could have been found by the
jury, are relevant to this appeal. The victim, Evelyn Agyei,
left her Bridgeport home at approximately 6 a.m. on December
4, 2014. Her eleven year old son accompanied her. Agyei and
her son got into her Subaru Outback (Subaru), Agyei driving
and her son in the back seat on the passenger's side.
After traversing some back roads, they took Bond Street and
arrived at the intersection of Bond Street and Boston Avenue.
Agyei stopped at the red light and then proceeded to make a
right turn onto Boston Avenue, staying in the right lane. As
she was making the right turn, her son looked to the left and
saw a white BMW sport utility vehicle (BMW) approximately two
streets down, traveling at a high rate of speed in the left
lane.
After
Agyei got onto Boston Avenue, the driver of the BMW pulled
alongside Agyei's vehicle. Agyei's son saw the BMW
logo on the hood; however, he could not see the driver or the
license plate. The driver of the BMW then moved into the
right lane, hitting Agyei's Subaru once on the
driver's side and causing her to begin to lose control of
the vehicle. The driver of the BMW then moved behind the
Subaru and ran into it from behind, causing the vehicle to
cross the median, proceed under a fence, and hit a tree.
Tragically, Agyei died from her injuries, and her son, who
also was injured, continues to have vision problems as a
result of the injuries he sustained.
After
an investigation, which included obtaining a video of the
incident from a nearby high school that had surveillance
cameras in the area, the police, having concluded that the
defendant was the driver of the BMW that hit the Subaru,
causing Agyei's death and the injuries to Agyei's
son, arrested the defendant.[2] Ultimately, she was charged, in a
long form information, with, inter alia, intentional
manslaughter, reckless man- slaughter, and criminally
negligent operation of a motor vehicle; the jury found her
guilty of these charges, among others. See footnote 1 of this
opinion. The court accepted the jury's verdicts and
rendered judgment accordingly. On the date of sentencing,
upon the request of the state, [3] the court vacated the
defendant's conviction of intentional manslaughter, and
it, thereafter, sentenced the defendant to twenty years
incarceration, execution suspended after sixteen years, with
five years of probation.[4] The defendant raises two claims on
appeal-(1) the jury's verdicts of guilty on the crimes of
intentional and reckless manslaughter and criminally
negligent operation were legally inconsistent because each of
these crimes requires a mutually exclusive mental state, and
(2) the court erred in failing to exclude testimonial
hearsay-and requests that we reverse the judgment of the
trial court and order a new trial on all charges and,
alternatively, on the charges of intentional manslaughter,
reckless manslaughter, and criminally negligent operation.
Additional facts will be set forth as necessary.
I
INCONSISTENT
VERDICTS
The
defendant first claims that the jury's verdicts on the
counts of intentional manslaughter, reckless manslaughter,
and criminally negligent operation were legally inconsistent
because they each require a mutually exclusive mental
state.[5] She argues that it was logically
impossible for the defendant to have possessed three forms of
intent, simultaneously, for a single act, involving a single
victim. The defendant explains that, at trial, the
state's theory of the case was that her action in twice
hitting Agyei's vehicle was one single act, which caused
Agyei's death. She argues that the state tried the case
under the theory that each of the three relevant counts of
the information were charged in the alternative, one being
intentional, one reckless, and one negligent. She contends
that the fact that the jury found her guilty of all three
charges, each requiring a different mental state, and that
the state, thereafter, requested that the court vacate the
intentional manslaughter conviction, demonstrates that the
verdicts were legally inconsistent. After setting forth our
standard of review and the general legal principles involved,
we will consider the relevant mental element of each of these
crimes in order to ascertain whether convictions of all three
crimes would be legally inconsistent.
‘‘It
is well established that factually inconsistent
verdicts are permissible. [When] the verdict could have been
the result of compromise or mistake, we will not probe into
the logic or reasoning of the jury's deliberations or
open the door to interminable speculation. . . . Thus, claims
of legal inconsistency between a conviction and an acquittal
are not reviewable [on appeal]. . . . We employ a less
limited approach, however, when we are confronted with an
argument that [two or more convictions] are inconsistent as a
matter of law or when the [convictions] are based on a legal
impossibility. . . . A claim of legally inconsistent
convictions, also referred to as mutually 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; emphasis in original; internal quotation
marks omitted.) State v. Nash, 316 Conn. 651, 659,
114 A.3d 128 (2015).
‘‘[C]ourts
reviewing a claim of legal inconsistency must closely examine
the record to determine whether there is any plausible theory
under which the jury reasonably could have found the
defendant guilty of [more than one offense].''
Id., 663. Nevertheless, the state is bound by the
theory it presented to the jury. See State v.
Chyung, 325 Conn. 236, 255-56, 157 A.3d 628 (2017)
(where state argued defendant engaged in only one act, rather
than two, principles of due process prohibited state from
relying on different theory on appeal).
A
Intentional
Manslaughter and Reckless Manslaughter
We
first consider whether the charges of intentional
manslaughter and reckless manslaughter were legally
inconsistent under the facts of this case and in view of the
state's theory.[6] We conclude that they were not legally
inconsistent because the mental state element for each of
these crimes related to different results.
The
following additional facts and procedural history inform our
review. As set forth previously in this opinion, the state
charged the defendant with, inter alia, intentional
manslaughter and reckless manslaughter. As to intentional
manslaughter, the state charged in relevant part that,
‘‘on or about the 4th day of December, 2014, at
approximately 6:30 a.m., at or near Boston Avenue within
[Bridgeport] . . . PATRICIA DANIELS, with the intent to cause
serious physical injury to another person, caused the death
of EVELYN AGYEI, in violation of [§] 53a-55 (a) (1) . .
. .''
As to
reckless manslaughter, the state charged in relevant part
that, ‘‘on or about the 4th day of December,
2014, at approximately 6:30 a.m., at or near Boston Avenue
within [Bridgeport] . . . PATRICIA DANIELS, under
circumstances evincing an extreme indifference to human life,
recklessly engaged in conduct which created a grave risk of
death to one EVELYN AGYEI, and thereby caused the death of .
. . EVELYN AGYEI, in violation of [§] 53a-55 (a) (3) . .
. .''
During
closing and rebuttal argument, the state specifically argued
to the jury: ‘‘[The defendant] knowingly and
recklessly got behind the wheel of her BMW; she intentionally
rammed that car off the road. And, by the way, if you
don't believe it was intentional, she recklessly ran that
vehicle off the road.'' It also argued:
‘‘We've proven beyond a reasonable doubt,
based on the video of that white BMW ramming, the intentional
ramming into Evelyn Agyei's car. That's intentional
conduct. But intent is a question of fact for you to decide.
The state recognizes that because, if you disagree that it
was intentional, we also submit and argue in the alternative
. . . that that conduct was, at the very least, reckless. She
had a reckless disregard for Evelyn Agyei's life . . .
.''[7]
Although
the state clearly contended that these crimes were charged in
the alternative, neither it nor the defendant requested that
the court specifically instruct the jury to consider each
charge in the alternative. To be clear, the defendant has not
claimed on appeal that the state's argument that the jury
should consider the charges in the alternative, itself,
precluded the jury from finding her guilty of both charges;
rather, her argument is that because each of the charges
required a mutually exclusive mental state, the jury was
precluded from finding guilt on both charges because one
intent negates the other. The defendant argues that the
guilty verdicts on the counts of intentional manslaughter and
reckless manslaughter were legally inconsistent because she
could not have engaged in both intentional and reckless
conduct simultaneously, involving only one act and one
alleged victim. She contends that it was legally impossible
for the jury to have found every element of both crimes
because, under the state's theory of the case, each of
the charges required a mutually exclusive finding with
respect to her mental state. We disagree.
Section
53a-55 (a) provides in relevant part: ‘‘A person
is guilty of manslaughter in the first degree when: (1) With
intent to cause serious physical injury to another person, he
causes the death of such person or of a third person; or . .
. (3) under circumstances evincing an extreme indifference to
human life, he recklessly engages in conduct which creates a
grave risk of death to another person, and thereby causes the
death of another person.''
Pursuant
to General Statutes § 53a-3 (11): ‘‘A person
acts ‘intentionally' with respect to a result or to
conduct described by a statute defining an offense when his
conscious objective is to cause such result or to engage in
such conduct . . . .'' Additionally, pursuant to
General Statutes § 53a-3 (13): ‘‘A person
acts ‘recklessly' with respect to a result or to a
circumstance described by a statute defining an offense when
he is aware of and consciously disregards a substantial and
unjustifiable risk that such result will occur or that such
circumstance exists. The risk must be of such nature and
degree that disregarding it constitutes a gross deviation
from the standard of conduct that a reasonable person would
observe in the situation . . . .''
In
support of her claim that intentional manslaughter and
reckless manslaughter require mutually exclusive mental
states, the defendant relies, in part, on State v.
King, 216 Conn. 585, 583 A.2d 896 (1990). In
Nash, our Supreme Court discussed King at
length and explained: In King, the defendant had
‘‘claimed that his convictions of attempt to
commit murder and reckless assault of the same victim based
on the same conduct were legally inconsistent because they
required mutually exclusive findings with respect to his
mental state. . . . We agreed with this claim, explaining
that King's conviction for attempt to commit murder
required the jury to find that he acted with the intent
to cause the death of the victim, whereas his conviction
for reckless assault required the jury to find that he
acted recklessly and thereby created a risk that the
victim would die. . . . We further explained that the
statutory definitions of intentionally and recklessly are
mutually exclusive and inconsistent. . . . Reckless conduct
is not intentional conduct because [a person] who acts
recklessly does not have a conscious objective to cause a
particular result. . . . Thus, we observed that [t]he
intent to cause death required for a conviction of
attempted murder [under General Statutes §§
53a-49 and 53a-54a (a)] . . . necessitated a finding that the
defendant acted with the conscious objective to cause
death . . . [whereas] [t]he reckless conduct
necessary to be found for a conviction of assault under
[General Statutes § 53a-59 (a) (3)] . . . required a
finding that the defendant acted without such a conscious
objective. . . . We concluded, therefore, that the jury
verdicts [with respect to attempt to commit murder and
reckless assault in the first degree] each of which requires
a mutually exclusive and inconsistent state of mind as an
essential element for conviction cannot stand.''
(Citations omitted; emphasis added; footnote omitted;
internal quotation marks omitted.) State v. Nash,
supra, 316 Conn. 660-61.
The
defendant also relies on State v. Chyung, 325 Conn.
236, 157 A.3d 628 (2017). In Chyung, the jury found
the defendant guilty of murder, in violation of §
53a-54a, and of reckless manslaughter in the first degree
with a firearm, in violation of General Statutes §§
53a-55a (a) and 53a-55 (a) (3), for the shooting death of his
wife. Id., 239, 239 n.1.
Section
53a-54a provides in relevant part: ‘‘(a) A person
is guilty of murder when, with intent to cause the
death of another person, he causes the death of such
person . . . .'' (Emphasis added.) Section 53a-55a
(a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree with a firearm
when he commits manslaughter in the first degree as provided
in section 53a-55, and in the commission of such offense he
uses, or is armed with and threatens the use of or displays
or represents by his words or conduct that he possesses a . .
. firearm. . . .'' As noted previously, § 53a-55
(a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree when . . . (3)
under circumstances evincing an extreme indifference to human
life, he recklessly engages in conduct which creates a
grave risk of death to another person, and thereby
causes the death of another person.'' (Emphasis
added.)
The
court in Chyung found that the jury's guilty
verdicts as to both charges were legally inconsistent because
the defendant could not act both intentionally and recklessly
with respect to the same victim, the same act, and the same
result simultaneously. State v. Chyung, supra, 325
Conn. 247-48. Our Supreme Court explained that to find the
defendant guilty of the crime of intentional murder, the jury
was required to find that the defendant had the specific
intent to kill the victim, his wife, but, to find the
defendant guilty of reckless manslaughter, the jury was
required to find that he acted recklessly, meaning, that he
acted without a conscious objective to cause the death of
the victim, but consciously disregarded the risk of his
actions, thereby putting the life of the victim in grave
danger. Id., 246-48. The court concluded that a
defendant cannot act with a conscious disregard that
his actions will create a grave risk of death to
another, while, at the same time, specifically intending
to kill that person. Id. The
‘‘defendant cannot simultaneously act
intentionally and recklessly with respect to the same act and
the same result . . . .'' Id., 247-48.
Although
the defendant argues that both King and
Chyung are controlling in this case, the state
contends that the defendant's claim is governed by
State v. Nash, supra, 316 Conn. 659-70. In
Nash, the jury found the defendant guilty of, among
other things, both intentional and reckless assault in the
first degree pursuant to General Statutes § 53a-59 (a)
(1) and (a) (3), respectively, [8] and the court rendered judgment
in accordance with the jury's verdicts. Id.,
656-57. On appeal, the defendant claimed in part that the
jury's verdicts of guilty on both intentional and
reckless assault were legally inconsistent because each crime
required a mutually exclusive state of mind. Id.,
657. Our Supreme Court disagreed, explaining that the two
mental states required for intentional and reckless assault
in the first degree related to different results.
Id., 666. More specifically, the court explained,
‘‘in order to find the defendant guilty of
[both intentional and reckless assault in the first
degree], the jury was required to find that the defendant
intended to injure another person and that, in doing so, he
recklessly created a risk of that person's death. In
light of the state's theory of the case, there was
nothing to preclude a finding that the defendant possessed
both of these mental states with respect to the same victim
at the same time by virtue of the same act or acts. In other
words, the jury could have found that the defendant intended
only to injure another person when he shot into [the
victim's] bedroom but that, in doing so, he recklessly
created a risk of that [victim's] death in light of the
circumstances surrounding his firing of the gun into the
dwelling. Accordingly, because the jury reasonably could have
found that the defendant simultaneously possessed both mental
states required to convict him of both intentional and
reckless assault, he cannot prevail on his claim that the
convictions were legally inconsistent.'' (Emphasis
added; footnotes omitted.) Id., 666-68.
The
court in Nash went on to examine and compare §
53a-59 (a) (1) and (3): ‘‘Intentional assault in
the first degree in violation of § 53a-59 (a) (1)
requires proof that the defendant (i) had the intent to cause
serious physical injury to a person, (ii) caused serious
physical injury to such person or to a third person, and
(iii) caused such injury with a deadly weapon or dangerous
instrument. Reckless assault in the first degree in violation
of § 53a-59 (a) (3) requires proof that the defendant
(i) acted under circumstances evincing an extreme
indifference to human life, (ii) recklessly engaged in
conduct that created a risk of death to another person, and
(iii) caused serious physical injury to another person. As we
previously explained, the mental state elements in the two
provisions-‘intent to cause serious physical
injury' and ‘recklessly engag[ing] in conduct which
creates a risk of death'-do not relate to the same
result. Moreover, under both provisions, the resulting
serious physical injury is an element of the offenses that is
separate and distinct from the mens rea
requirements.'' Id., 668-69. The court then
held: ‘‘Because the defendant's convictions
for intentional and reckless assault in the first degree
required the jury to find that the defendant acted
intentionally and recklessly with respect to different
results, the defendant cannot prevail on his claim that those
convictions are mutually exclusive and, therefore, legally
inconsistent.[9]'' Id., 669.
The
court in Nash provided an example of where a single
act, directed to a single victim, could result in a
conviction of both intentional and reckless assault in the
first degree: ‘‘For example, if A shoots B in the
arm intending only to injure B, A nevertheless may recklessly
expose B to a risk of death if A's conduct also gave rise
to an unreasonable risk that the bullet would strike B in the
chest and thereby kill him. In such circumstances, a jury
could find both that A intended to injure B and, in doing so,
recklessly created an undue risk of B's death.''
Id., 666 n.15. We conclude that the same analysis
applies in the present case.[10]
Intentional
manslaughter in violation of § 53a-55 (a) (1) requires
proof that the defendant (i) had the intent to cause
serious physical injury to a person, and (ii) caused the
death of such person or of a third person. Reckless
manslaughter in violation of § 53a-55 (a) (3) requires
proof that the defendant (i) acted under circumstances
evincing an extreme indifference to human life, (ii)
recklessly engaged in conduct that created a grave risk
of death to another person, and (iii) caused the death
of an other person. Guided by our Supreme Court's
analysis in Nash, we conclude that the mens rea
elements in the two provisions, namely, the
‘‘intent to cause serious physical
injury'' and ‘‘recklessly engag[ing] in
conduct which creates a grave risk of death'';
General Statutes § 53a-55 (a); do not relate to the same
result. In finding the defendant guilty of both intentional
and reckless manslaughter, the jury in the present case
reasonably could have found that the ...