State v. Bailey

Decision Date13 December 1988
Docket NumberNo. 13406,13406
Citation551 A.2d 1206,209 Conn. 322
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Janet BAILEY.

Joette Katz, Public Defender, with whom, on the brief, was G. Douglas Nash, Asst. Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Richard F. Jacobson and Henry J. Lyons, Asst. State's Attys., for appellee (State).

Before PETERS, C.J., and HEALEY, SHEA, GLASS and COVELLO, JJ.

GLASS, Associate Justice.

The defendant, Janet Bailey, was charged with the crimes of assault in the first degree in violation of General Statutes § 53a-59(a)(1) 1 and carrying a pistol without a permit in violation of General Statutes §§ 29-35 and 29-37(b), 2 in connection with the January 25, 1986 shooting of Jeffrey Daniels. A six member jury found the defendant guilty on both charges. On January 30, 1987, she received concurrent sentences totalling five years imprisonment. She appeals from the judgment of conviction, claiming error in the trial court's instructions to the jury on both charges and error in the court's failure to grant a judgment of acquittal on the pistol carrying charge. We find no reversible error.

Many of the critical facts in this case are disputed. Jeffrey Daniels and his wife Penny Daniels were married in 1984. They lived with their son, born prior to the marriage in 1982, at 29 New Era Court in Bridgeport. Jeffrey Daniels testified that during his marriage he had struck his wife, but claimed that he had done so in self-defense. Penny testified that Jeffrey had threatened and beaten her on several occasions. She stated that she had twice called police because her husband had beaten her, but on both occasions had declined to press charges.

The defendant had been friends with Penny since high school, and often visited her at the New Era Court apartment. Jeffrey testified that about one week after their marriage, he returned home to discover Penny and the defendant kissing and embracing on the couch. Jeffrey told his wife that he did not want the defendant in their home again, and warned her that he would take their son and move out if he ever again found Penny and the defendant in an amorous position. Penny testified that she had never been amorous with the defendant and claimed that Jeffrey did not like the defendant because he was worried about his reputation with his friends, who thought the defendant looked like a lesbian.

Jeffrey testified to the following version of events leading to the January 25, 1986 incident. At the time, he was living at the New Era Court apartment. On the previous day, he had returned home from work at about 2 p.m. and had found no one there. He changed clothes and went to his mother's home.

At 5 a.m. on January 25, 1986, he telephoned Penny to tell her he was coming over. Upon arriving at New Era Court, Jeffrey discovered that the apartment locks had been changed. He knocked on the front door but received no response. He went to a telephone booth and called Penny, but there was no answer. He then returned to the apartment and, after again knocking with no response, entered the apartment through an open kitchen window. Jeffrey proceeded up the stairs and observed the bedroom door being closed. He forced the door open, entered the room and saw the defendant on top of the bed covers and Penny and his son under the covers. All three were naked. Jeffrey went to the bed to get his son. Penny and the defendant attacked him, and as he fought back, the defendant left the bed and went to a corner of the room. During this time, Jeffrey had taken the telephone away from Penny as she attempted to hit him with it. The defendant then returned to the bed. As Jeffrey turned and looked at her from a distance of approximately ten feet, the defendant shot him. Jeffrey then ran from the apartment to his car.

The defendant and Penny offered the following version of events. Penny testified that Jeffrey had ceased to live with her on a regular basis three to four weeks prior to the shooting. Penny had changed the locks on the apartment two to three weeks before the incident, and Jeffrey did not have a key. Upon Penny's invitation, the defendant had moved in with her three to seven days before the shooting.

The thrust of the defendant's and Penny's testimony concerning the shooting was that the defendant had acted in self-defense. Penny testified that on the day of the incident, Jeffrey phoned her between 3 and 3:30 a.m. and asked if he could come over. Penny refused his request. A short while later, she heard a knock on the front door and saw Jeffrey, but did not admit him. Penny then received a telephone call from her sister. She heard a clicking sound during the conversation with her sister, indicating that someone was attempting to call her. She assumed the call was from Jeffrey and did not answer it.

Shortly thereafter, as she and the defendant were watching television in an upstairs bedroom, Penny heard noises from downstairs and saw Jeffrey coming up the stairs. Penny's son was sleeping in the bedroom. Penny was partially clothed and the defendant was fully dressed. The defendant attempted to shut the door, but Jeffrey pushed it open and began to punch her and threaten to kill her. Penny, who still was speaking on the telephone, told her sister to call the police. Jeffrey then attacked Penny, hitting her with his fist and with the telephone. The defendant attempted to leave the room but Jeffrey pushed her and then beat her with his fist and the telephone. He then removed his jacket and advanced toward Penny, exclaiming that he intended to "fuck you bitches up." The defendant left the bed to retrieve her jacket from a nearby chair. Jeffrey again attacked the defendant, but she was able to remove a handgun from her jacket pocket. Seeing the gun, Jeffrey told the defendant that she would have to kill him or shoot him. The defendant then shot Jeffrey as he advanced on her. Jeffrey grabbed his stomach and fled the room. Penny never saw the gun, but assumed that the defendant had taken it from her jacket.

The defendant left the scene, telephoned her sister and asked her to have the defendant's brother-in-law, a police officer, meet her. The defendant then went to the police station accompanied by her brother-in-law. At the police station, the defendant was interviewed by two police officers. Both officers testified that the defendant had bruises, small cuts on her hand and forehead, a lump on her forehead, and a chipped tooth. One of the officers also interviewed Penny and observed a lump on her forehead. Photographs of both the defendant and Penny taken after the shooting were admitted into evidence.

Officers who observed the scene of the incident testified that the telephone in the bedroom was broken but that there was no sign of a struggle and no blood. Shortly after the incident, the defendant gave a voluntary statement to one of the investigating officers. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In her statement, the defendant gave her address as 134 Marina Village in Bridgeport, the home of her mother.

On appeal, the defendant claims that the trial court erred in (1) failing to instruct the jury that it had to agree unanimously upon which of the alternative ways the state had disproven the defendant's claim of self-defense, (2) failing to instruct the jury that the defendant had no duty to retreat from the confrontation if she was a "dweller" at 29 New Era Court, (3) failing to instruct the jury that self-defense is a defense to the pistol carrying charge, and (4) failing to grant the defendant's motions for judgment of acquittal on the pistol carrying charge. We find no reversible error.

I

The defendant first claims that the trial court violated her constitutional right to a unanimous jury verdict by failing to instruct the jury that it had to agree on which of the alternative ways the state had disproven her self-defense claim. There is no indication in the record that the defendant either submitted a request to charge on this issue, or took exception immediately after the charge was given. Because this claim was not properly preserved for appeal, this court is not bound to consider it. Practice Book §§ 852, 4185; 3 State v. Butler, 207 Conn. 619, 629, 543 A.2d 270 (1988); State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988).

The defendant suggests, however, that her claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973) because it implicates fundamental due process rights. Evans "permits review of an unpreserved claim where the record adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial." State v. Butler, supra, 207 Conn. at 629, 543 A.2d 270; State v. Gonzalez, 205 Conn. 673, 685, 535 A.2d 345 (1987); State v. Robinson, 204 Conn. 207, 210 n. 4, 527 A.2d 694 (1987); State v. Miller, 186 Conn. 654, 659, 443 A.2d 906 (1982). Accordingly, before addressing the merits of the claim, we must determine whether the defendant has been deprived of a fundamental constitutional right. 4

The defendant argues that the trial court's instruction that the state must disprove justification beyond a reasonable doubt did not convey to the jury the understanding that they must agree unanimously on the particular provision of the self-defense statute by which the state had refuted her claim. The trial court's charge on self-defense was based on General Statutes § 53a-19. 5 The court instructed the jury that the defendant would not have been justified in using deadly physical force unless she reasonably believed that the victim, Jeffrey Daniels, was either using or about to use deadly physical force, or was inflicting or about to inflict great bodily harm, on the defendant or Penny Daniels....

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