State v. Alicea

• Decision Date: 30 July 2019
• Docket Number: AC 40311
• Citation: 215 A.3d 184,191 Conn.App. 421
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Victor M. ALICEA

191 Conn.App. 421

215 A.3d 184

STATE of Connecticut

v.Victor M. ALICEA

AC 40311

Appellate Court of Connecticut.

Argued April 8, 2019

Officially released July 30, 2019

Jonathan R. Formichella, certified legal intern, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Anne F. Mahoney, state's attorney, and Mark A. Stabile, supervisory assistant state's attorney, for the appellee (state).

Prescott, Bright and Eveleigh, Js.

BRIGHT, J.

The defendant, Victor M. Alicea, appeals, following a jury trial, from the judgment of conviction of assault in the first degree in violation of General Statutes § 53a-59 (a) (1) (intentional assault) and assault in the first degree in violation of General Statutes § 53a-59 (a) (3) (reckless assault). The defendant, following a plea of nolo contendere to a part B information, also was convicted of being a persistent dangerous felony offender pursuant to General Statutes § 53a-40 (a) (1) (A). On appeal, the defendant claims that (1) the jury's verdicts of guilty on both intentional and reckless assault were legally inconsistent, (2) the court erred in excluding his statement to the police, given approximately forty-five minutes after the incident at issue, and (3) the state failed to disprove his claim of self-defense. We affirm the judgment of the trial court.

The following facts, as reasonably could have been found by the jury on the basis of the evidence, and procedural history assist in our consideration of the defendant's claims. The defendant and the victim, Tyrone Holmes, worked at Burger King in the Dayville section of Killingly (restaurant). Holmes generally worked third shift as a porter, doing maintenance and cleaning at the restaurant. On July 9, 2015, the defendant, who also worked as a porter at the restaurant, was covering Holmes' third shift. After midnight, Holmes, accompanied by his friend, Robert Falu, arrived at the closed restaurant to drop off some supplies and to speak with the defendant, whom, he had heard, had been talking about him. Falu waited in or around Holmes' vehicle while Holmes let himself into the back entrance using his key. Holmes then asked the defendant to step outside. The defendant and Holmes went outside, had a brief discussion, and the defendant denied having talked negatively about Holmes. Everything appeared fine to Holmes. Holmes returned to his vehicle, retrieved some supplies, and went back into the restaurant.

Upon returning to the restaurant, Holmes heard the defendant on his cell phone telling whomever was listening to get to the restaurant because the defendant had a problem. Holmes told the defendant that they did not have a problem, and the defendant walked away while Holmes was trying to talk to him. Holmes followed the defendant, who went near the fryers, and the defendant repeatedly told Holmes that he was trying to save Holmes' life. Holmes, who was holding a set of car keys in his hands, tossing them from one hand to the other, became angry and the two began arguing. The defendant then pulled Holmes' head toward him and cut his throat with a razor blade. Initially, Holmes thought the defendant had punched him, and he assumed a fighter's stance. He then saw that he was bleeding, however, and he ran from the restaurant. Some of the altercation was caught on the restaurant's video. Once outside, Holmes threw his car keys to Falu and told him to start the car. The defendant, who had followed Holmes outside, chased him around the car twice, and said, "see what happens when you mess with me." Holmes got into the driver's seat of the car and drove away with Falu. After Holmes arrived home, Holmes' wife called 911, and she tried to stop the bleeding from Holmes' neck by applying pressure with a towel. The defendant also called 911 from the restaurant.

Holmes was taken by ambulance to Day Kimball Hospital in Putnam, where he was examined by Joel Bogner, an emergency medicine physician, who determined that Holmes had sustained a neck laceration that was approximately seven inches long and that the care he needed was "beyond the capabilities of Day Kimball Hospital ...." Holmes was given morphine

sulfate for pain and then was transferred to Hartford Hospital, via ambulance, where he underwent surgery for the laceration to his neck, which included the repair of a lacerated neck muscle and his left external jugular vein.

The defendant was arrested and later charged with both intentional and reckless assault. The jury found the defendant guilty of both charges,¹ and, after accepting the verdict, the court rendered judgment of conviction on both counts. The defendant also pleaded nolo contendere to being a persistent dangerous felony offender. The court merged the conviction of the two assault charges and sentenced the defendant to a mandatory minimum term of ten years of incarceration, followed by twelve years of special parole on the count of intentional assault as a persistent dangerous felony offender. This appeal followed.

I

A

The defendant first claims that the jury's verdicts of guilty of both intentional and reckless assault were legally inconsistent because each charge required a mutually exclusive state of mind. He contends that he cannot be guilty of both intentional and reckless assault because he engaged in but one single act, against one single victim. The defendant relies on State v. Chyung , 325 Conn. 236, 157 A.3d 628 (2017), and State v. King , 216 Conn. 585, 583 A.2d 896 (1990), to support his claim. The state responds that the verdicts were not legally inconsistent in this case because a person can act both recklessly and intentionally at the same time, as to different results, as was concluded by our Supreme Court in State v. Nash , 316 Conn. 651, 660–61, 114 A.3d 128 (2015). We agree with the state.

Section 53a-59 (a) provides in relevant part: "A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to 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 ...."

Pursuant to § 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 ...."

"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; internal quotation marks omitted.) State v. Nash , supra, 316 Conn. at 659, 114 A.3d 128.

"[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., at 663, 114 A.3d 128. Nevertheless, the state is bound by the theory it presented to the jury. See State v. Chyung , supra, 325 Conn. at 256, 157 A.3d 628 (where state argued defendant engaged in only one act, rather than two, principles of due process prohibited state on appeal from relying on theory that defendant engaged in two acts).

The defendant argues that King and Chyung are similar to the present case and that Nash is inapposite. State v. Daniels , 191 Conn. App. 33, 43–48, 213 A.3d 517 (2019).

In Daniels , we first discussed our Supreme Court's explanation of State v. King , supra, 216 Conn. at 585, 583 A.2d 896 : "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 ...