State v. O'Bryan

• Decision Date: 15 September 2015
• Docket Number: No. 19336.,19336.
• Citation: 123 A.3d 398,318 Conn. 621
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Latasha R. O'BRYAN.

318 Conn. 621

123 A.3d 398

STATE of Connecticut

v.Latasha R. O'BRYAN.

No. 19336.

Supreme Court of Connecticut.

Argued Dec. 2, 2014.

Decided Sept. 15, 2015.

Neal Cone, senior assistant public defender, for the appellant (defendant).

Sarah Hanna, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Laura DeLeo, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

Opinion

ROBINSON, J.

This appeal presents numerous issues concerning the self-defense statute, General Statutes § 53a–19,¹ and particularly the combat by agreement disqualification under § 53a–19 (c)(3). The defendant, Latasha R. O'Bryan, appeals² from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a–60 (a)(2), and attempt to commit assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–59 (a)(1). On appeal, the defendant claims that the trial court improperly instructed the jury that: (1) with respect to the subjective portion of the self-defense analysis, the defendant was required to have an “honest” or “sincere” belief that physical force was going to be used against her; (2) she was required to demonstrate that she had actual knowledge, rather than merely a reasonable belief, that the victim had violated the terms of their combat by agreement; and (3) the defendant retained the burden of proof once the state asserted a theory of combat by agreement. The state disagrees, and posits, as an alternative ground for affirmance, that the defendant was not harmed by any of the claimed improprieties in the jury instruction because any defendant who is a party to combat by agreement is completely disqualified from relying on the justification of self-defense, even if the other combatant escalated the violence beyond the terms of the agreement. We conclude that the trial court properly instructed the jury. Accordingly, we affirm the judgment of the trial court.

The record reveals the following facts, which the jury reasonably could have found,³ and procedural history.

The defendant and the victim, Lawanda McCrea, lived in different units within the same apartment building in New Haven. The defendant and the victim had previously been friendly but, in the months leading up to the Memorial Day weekend of 2010, their relationship had deteriorated significantly.⁴ The friction between them had become so great that the defendant had complained twice to their landlord, Merwin Wade, about the victim, saying that “if she keeps messing with me, [I'm going to] beat the shit out of her,” and that “it's getting out of hand now ... and if she keep[s] bothering me, I'm [going to] whup her butt.”

After midnight on May 30, 2010, the victim and her cousin, Whitney Nichols, left a cookout and drove to the apartment building. Upon arriving at her building, the victim saw several people on the porch, including the defendant, who had just returned home from a double shift at her job as a nurse's aide. Given the animosity between them, the victim was concerned that the defendant would start a fight with her. Rather than park their vehicle, the victim and Nichols pulled away and stopped around the corner from the building. The victim then called her uncle, William Murdock, and asked him to help her get into her apartment safely because she was worried that she might be “jumped” by the defendant and the others on the porch. If there was going to be a fight, the victim testified, she did not want anyone assisting the defendant.

A few minutes later, Murdock and Wanda Atkins, the victim's aunt, arrived to accompany the victim into her apartment. The victim and her family members then exited their vehicles and began walking up to the building.

Murdock was angry that his niece felt threatened and had a heated exchange with the people gathered on the porch. David Kennedy, another building resident, came outside when he heard the raised voices and, after speaking with Murdock, returned inside to wake up Wade. Murdock, who the defendant testified appeared intoxicated, then argued with the defendant, and then the defendant and the victim exchanged words, raising their voices and cursing at each other.⁵ The defendant told the victim that she wanted a “fair one.”⁶ As the victim testified, “[the defendant] and I both wanted to fight each other.” Because the victim was wearing a sundress and sandals, she went up to her apartment to change into “appropriate fighting attire.”

Meanwhile, Wade, having been apprised of the developing situation by Kennedy, went outside and directed everyone who did not live in the building to get off the porch. As the victim returned downstairs, she met Wade and explained to him what was happening. Wade told the victim to “just leave it alone” because he did not want any fighting to take place.

Notwithstanding Wade's instructions, the victim went out to the porch at the same time that the defendant returned with her cousin, Tiny Lester. The victim said to the defendant, “you want your fair one,” and then walked to meet the defendant on the sidewalk. The defendant approached the victim and reiterated that she “want[ed] [her] fair one.” The defendant raised her fists in a fighting stance and the victim did the same. The victim testified that she had no weapons with her, although the defendant provided a different account, stating that she saw the victim with a lime green colored sharp object just as the fight started.

The defendant swung first with her right hand, striking the victim with a small steak knife that she carried for both work and self-defense purposes, and the victim swung back with her right hand, while her left hand was up in a defensive position. The victim never hit the defendant because she heard Wade start to scream. The victim looked down and realized she had blood on her left hand and yelled, “I'm cut.” Atkins started screaming that she had seen the blade and that she was calling 911. The defendant denied having cut the victim, yelling that the victim must have cut herself or that maybe her fingernails cut the victim.⁷ At that point, the fight ended and the victim returned to the building.

As she was walking up to her apartment, the victim realized that her shirt and entire right breast area were soaked in blood. Murdock drove her to the hospital, where she received treatment for a chest wound

four centimeters long and nine to ten centimeters deep. The defendant was arrested, but the knife was never recovered.⁸

The state charged the defendant with assault in the second degree in violation of § 53a–60 (a)(2), and attempt to commit assault in the first degree in violation of §§ 53a–49 (a)(2) and 53a–59 (a)(1). The case was tried to a jury, which rejected the defendant's claim of self-defense and found her guilty on all counts. The trial court subsequently rendered a judgment of conviction in accordance with the jury's verdict, and sentenced the defendant to a total effective sentence of five years imprisonment. This appeal followed.

On appeal, the defendant raises numerous challenges to the trial court's jury instructions on both self-defense generally, and combat by agreement specifically. The state concedes that the defendant's instructional claims, although unpreserved, are reviewable under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), because they were not waived and “[a]n improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension.” (Internal quotation marks omitted.) State v. Clark, 264 Conn. 723, 729, 826 A.2d 128 (2003). Thus, in considering the defendant's instructional claims, we note that the well established “test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... 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. Lavigne, 307 Conn. 592, 599–600, 57 A.3d 332 (2012).

I

We first consider the defendant's claim that the trial court incorrectly charged the jury on the subjective portion of the subjective-objective test for determining entitlement to self-defense. Specifically, the defendant contends that the court incorrectly required that she have an “honest” or “sincere” belief that physical force was going to be used against her.⁹ Relying primarily on United States v. Hardin, 443 F.2d 735 (D.C.Cir.1970), the defendant contends that this language is confusing because it imports a good faith requirement that goes beyond the “actual belief” required by the subjective portion of the self-defense analysis. In response, the state relies on, inter alia, State v. Prioleau, 235 Conn. 274, 664 A.2d 743 (1995), and State v. Clark, supra, 264 Conn. at 723, 826 A.2d 128, and contends that the use of the terms “honest” and “sincere” is well established in our case law and pattern instructions because they are “synonyms of the term ‘actual.’ ” We agree with the state, and conclude that the trial court's instructions were an accurate statement of the law of self-defense that could not have misled the jury.

We begin with a “brief review of the law of self-defense. Under our Penal Code, self-defense, as defined in [General Statutes] § 53a–19 (a)... is a...