State v. Carter, Nos. 14934

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; NORCOTT
• Citation: 232 Conn. 537,656 A.2d 657
• Parties: STATE of Connecticut v. Che CARTER STATE of Connecticut v. Norman DILLON
• Docket Number: 14958,Nos. 14934
• Decision Date: 04 April 1995

Page 657

656 A.2d 657 232 Conn. 537 STATE of Connecticut
v.
Che CARTER
STATE of Connecticut
v.
Norman DILLON Nos. 14934, 14958. Supreme Court of Connecticut. Argued Jan. 12, 1995.
Decided April 4, 1995.

Page 658

John R. Williams, New Haven, for appellant in the first case (defendant Che Carter).

Susan M. Hankins, Asst. Public Defender, for appellant in the second case (defendant Norman Dillon).

[232 Conn. 538] Carolyn K. Longstreth, Asst. State's Atty., with whom were James Turcotte, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., for appellee in both cases (state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

NORCOTT, Justice.

The sole issue in these certified appeals ¹ is whether the Appellate Court properly concluded that the defendants were not entitled to a jury instruction on the law of self-defense. The defendants, Che Carter and Norman Dillon, were convicted, ² after a joint jury trial, of murder in violation of General Statutes § 53a-54a(a). ³ The defendants' convictions were affirmed by the Appellate Court. State v. Carter, 34 Conn.App. 58, 640 A.2d 610 (1994); State v. Dillon, 34 Conn.App. 96, 640 A.2d 630 (1994). We granted certification to each of the defendants separately, limited to the question of whether the

Page 659

trial court had improperly denied the defendants' written requests to instruct the jury on self-defense. State v. Carter, 229 Conn. 919, 644 A.2d 915 (1994); State v. Dillon, 230 [232 Conn. 539] Conn. 906, 644 A.2d 920 (1994). We conclude that, under the circumstances of these cases, each of the defendants was entitled to a self-defense instruction. We therefore reverse their convictions and remand the cases for a new trial.

The pertinent facts are set forth in the Appellate Court opinion in the case of Che Carter as follows. "On December 28, 1989, at about 3 p.m., Willie Peterson, John Peterson and Wilbert Cannon were passengers in a gray Jeep Cherokee being operated by Paul Darden and owned by Darden's sister. The vehicle was traveling on Sylvan Avenue in New Haven. Cannon was armed with a Mac-11 gun, ⁴ while Willie Peterson was armed with a .380 handgun. ⁵ Darden stopped the vehicle at the corner of Asylum Street and Sylvan Avenue and John Peterson exited the car. He entered a corner store on the right side of the street and emerged approximately five minutes later. Cannon and Willie Peterson then exited the vehicle and began to walk up the left side of Asylum Street toward Davenport Street. Darden remained standing by the vehicle. Norman Dillon, Eric Bush, Paul Anderson, [Che Carter] and possibly one other person appeared in the middle of Asylum Street about fifteen feet from Cannon and Willie Peterson. Several members of that group had threatened Cannon and Willie Peterson in the past.

"Upon seeing the group, Willie Peterson and Cannon turned around and walked away. Gunshots rang out. ⁶ The group then consisted of only three or four [232 Conn. 540] people, ⁷ each of whom had a gun and was firing toward Cannon and Willie Peterson. The group firing at Willie Peterson and Cannon included the defendant[s] [Carter and Dillon]. Cannon turned around, pulled out his gun, fired about thirty shots toward the group and ran toward a field on the left side of the street while Willie Peterson ran toward John Peterson on the right side of the street. ⁸ John Peterson observed Willie Peterson grab his back and fall to the ground, landing on top of his gun, which was cocked and in firing position. [Carter], Dillon and Bush ran up Asylum Street toward Davenport Street. Four males were also seen running down Davenport Street after the shooting.

"Paul Halloran, an emergency medical technician employed by the New Haven fire department, arrived at the shooting scene approximately three minutes later. He observed a black male lying face down on the sidewalk of Asylum Street approximately two houses from the corner of Sylvan Avenue. The person did not appear to be breathing. He also observed a stainless steel gun lying a few feet away from the body, which he believed was a nine millimeter or .380 automatic, and several shell casings. Halloran assessed the victim's condition and found that the victim lacked vital signs. He then proceeded to remove the victim's clothes to initiate CPR. At that time, Halloran noticed that the victim had suffered a gunshot wound to the back rib cage area. The victim was transported by ambulance to the Yale-New Haven Hospital. The victim lacked vital signs upon arrival at the hospital, and was pronounced dead.

Page 660

[232 Conn. 541] "The New Haven police conducted an investigation at the scene and discovered on Asylum Street thirty-four nine millimeter shell casings, one .380 shell casing and one shell casing of unknown caliber. In addition, the police extracted one live round from the .380 handgun lying next to the victim. Twenty-six nine millimeter shell casings were located on the left side of Asylum Street near the corner of Sylvan Avenue. These casings were found in the same area as the single .380 caliber casing. Eight nine millimeter shell casings were found on the left side of Asylum Street closer to Davenport Street. These nine millimeter casings were found in the same area as the five .45 caliber casings.

"The next day, from a photographic array, John Peterson identified [Carter and Dillon] as being at the scene of the shooting. On December 30, 1989, Cannon identified [Carter] as having been involved in the shooting of Willie Peterson.

"On December 29, 1989, H. Wayne Carver, chief medical examiner for the state of Connecticut, performed an autopsy on the victim. The autopsy revealed a gunshot wound in the back. It showed that the bullet entered the body at a forty-five degree angle from the left side and below the body, so that the trace of the bullet in the body followed an upward path from left to right, as if the victim was bending over when he was shot. The path of the bullet in the body also indicated that the shot was fired from behind the victim. The bullet followed a path through the eleventh rib, the lower half of the left lung, the sac around the heart, and passed by the right lung and lodged in the collar bone. It caused damage to the left lung, the upper chambers of the heart, the aorta, the pulmonary artery, the superior vena cava, bruised the right lung and partially fractured the clavicle. A .45 caliber bullet was removed from the victim's body during the autopsy. The state forensic laboratory determined that that bullet had not [232 Conn. 542] been fired from Cannon's nine millimeter gun or from Willie Peterson's .380 caliber weapon. Although the autopsy revealed cocaine in the nose of the victim, it failed to reveal its presence in the victim's blood.

"On January 4, 1990, Detective Anthony Dilullo of the New Haven police department interviewed Maria Diaz about the shooting. Diaz identified [Carter and Dillon] as [two] of the persons involved. She also told Dilullo that Carter was on the left side of the street during the shooting.

"On October 6, 1990, Adam Luth, an Orange police officer, observed a green Saab on Route 1, Boston Post Road, in Orange. He noted that the vehicle displayed a rear marker plate, but lacked a front plate. Luth noted that there was a passenger in the car. The officer sought information about the vehicle from the department of motor vehicles. The department advised Luth that it had no information about the vehicle. The Saab pulled into a gas station on Boston Post Road and stopped. The officer approached the vehicle and asked the driver for his operator's license, registration and insurance card. The operator identified himself as Carlos Carter. The officer checked his name with the dispatcher and was informed that there possibly was a warrant for the operator's arrest. The officer then asked the passenger for identification. The passenger stated that he had no identification and that he was Harold Goldston. The officer then requested information from the dispatcher concerning Goldston. Luth returned to talk with the vehicle's operator, who was pumping gas. The officer asked the operator the name of the passenger and the operator told the officer that the passenger was his brother Che. The officer then asked the passenger to exit the vehicle and asked him for his real name. The passenger said that his name was Che Carter. The dispatcher informed the officer that the arrest warrant was for Che Carter. The New [232 Conn. 543] Haven police department informed the Orange police that Che Carter had a round scar on the right forearm. The officer saw such a scar on the passenger's right forearm. The Orange police then detained [Carter] until the New Haven police arrived. Dilullo came to the Orange police department and positively identified [Carter] as the person wanted for murder. The detective then placed [Carter] under arrest." State v. Carter, supra, 34 Conn.App. at 60-64, 640 A.2d 610; see also State v. Dillon, supra, 34 Conn.App. at 98, 640 A.2d 630.

Page 661

At trial, the defendants submitted written requests for a jury instruction on the issue of self-defense. The trial court rejected the defendants' requests on the dual grounds that the defendants had presented no evidence at trial to support such an instruction, ⁹ and that the requests were untimely because they did not comply with Practice Book § 853. ¹⁰ The Appellate Court [232 Conn. 544] affirmed the trial court's decision, concluding that "[o]n the basis of the evidence, a reasonable doubt in the mind of a rational juror that the defendant[s] acted in self-defense could not have been raised." State v. Carter, supra, 34 Conn.App. at 68, 640 A.2d 610, citing State v. Lewis, 220 Conn. 602, 619, 600 A.2d 1330 (1991).

The defendants, on appeal, claim that the Appellate Court improperly upheld the trial court's failure to instruct the jury on the defense of self-defense. ¹¹ They [232...