State v. Carter

• Decision Date: 19 March 2013
• Docket Number: No. 32783.,32783.
• Citation: 141 Conn.App. 377,61 A.3d 1103
• Parties: STATE of Connecticut v. Kenneth CARTER.
• Court: Connecticut Court of Appeals

141 Conn.App. 377

61 A.3d 1103

STATE of Connecticut

v.Kenneth CARTER.

No. 32783.

Appellate Court of Connecticut.

Argued Sept. 20, 2012.

Decided March 19, 2013.

Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Michael L. Regan, state's attorney, and, on the brief, Michael E. Kennedy, senior assistant state's attorney, for the appellee (state).

ALVORD, SHELDON and WEST, Js.

SHELDON, J.

The defendant, Kenneth Carter, appeals from the judgment of conviction, rendered against him following a jury trial in the New London Superior Court, on charges of attempt to commit assault in the first degree with a deadly weapon in violation of General Statutes §§ 53a–49 (a)(2) and 53a–59 (a)(1), reckless endangerment in the first degree in violation of General Statutes § 53a–63 and threatening in the second degree in violation of General Statutes § 53a–62 (a)(2).¹ On appeal, the defendant claims that insufficient evidence was adduced at trial to sustain his conviction of any of those charges. We affirm the judgment of the trial court.

The jury was presented with the following evidence upon which to base its verdict. At approximately 10:30 p.m. on October 29, 2006, as Officer Brigitte Nordstrom of the Groton town police department was participating in the execution of a search warrant, she received a text message from one of her confidential informants, Jeffrey Mumford. Mumford advised her that the defendant, whom she had known for many years, was going to “pop this white dude” at the Time Out Sports Café in Groton (café). When Nordstrom replied to Mumford that if she responded to his tip he might be exposed as a confidential informant, he texted back, “I don't care, keep me safe.” Nordstrom then called Mumford on his cellular telephone to learn what the defendant was wearing and where he could be found inside the café.

Nordstrom next informed her supervisor, Lieutenant James Bee, of the reported situation at the café and he, in turn, informed his shift commander, Lieutenant Ben Carpenter, who arranged at once for certain uniformed officers to meet with Nordstrom and Bee in the parking lot of a firehouse not far from the café. It was decided at that meeting that the entire team would proceed to the café, that Nordstrom and Bee would enter first to spot and make contact with the defendant, and that the other officers, Sergeant Keith Ashbey and Officers William Wolfe and Richard Savino, would enter immediately thereafter to provide uniformed presence and backup, surveying the crowd for confederates of the defendant or other possible sources of danger. Nordstrom and Bee were both dressed in plain clothes, but were wearing blue shirts with the words “police” and “narcotics task force” emblazoned in bright yellow letters on the front and back, respectively. The other officers were all wearing their regular police uniforms.

After arriving at the café, the team entered as planned, with Nordstrom, Bee and Ashbey leading the way, followed by Wolfe and Savino several steps behind. As they entered, Nordstrom, who was carrying her unholstered service pistol to her side, and Bee, who was unarmed, quickly spotted the defendant standing at the bar to their immediate left, in the company of two women. When the officers first saw him, the defendant was leaning against the bar with the left side of his body. As Nordstrom and Bee turned to move in his direction, however, he immediately turned to face them while pulling a small handgun from his right front pants pocket. He raised the gun and pointed it at Nordstrom's midsection. Upon seeing the defendant pull his gun, Nordstrom loudly shouted, “gun,” then, “he's got a gun,” to warn her fellow officers, while raising her own gun to point it at him. Bee, who saw the defendant holding something that could have been a gun, also shouted, “gun,” to alert his fellow officers as Nordstrom ordered the defendant to drop his gun, which he did not do. Instead, the defendant and Nordstrom had a brief standoff, with their guns pointed at each other but neither attempting to shoot, until the defendant turned away toward the bar, with his gun and both of his hands in front of him and his back to Nordstrom and Bee.

Ashbey, who upon entering the café had moved past and to the right of Bee and Nordstrom to take up a position to the right and rear of the bar, from where he could survey the crowd of from twenty-five to fifty patrons, ² refocused his attention on the defendant when he heard his fellow officers' warnings about the defendant's gun. Ashbey, however, never saw the defendant holding a gun, for by the time he turned toward the defendant, Wolfe and Savino, who had followed him into the café, were struggling with the defendant near the bar in an effort to secure his arms from behind. When the defendant continued to struggle with Wolfe and Savino, even after the three of them fell to the floor, Ashbey, who was carrying his .22 caliber patrol rifle, ordered Wolfe and Savino to back away from the defendant, then ordered the defendant to show his hands or be shot. Upon making eye contact with Ashbey and seeing the patrol rifle aimed at his back, the defendant finally stopped struggling and submitted to being handcuffed.

Wolfe and Savino also testified that they never saw the defendant holding a gun. According to Wolfe, by the time he entered the café, Nordstrom and Bee were already struggling with the defendant. Savino explained that his attention, which was initially focused on the crowd, was not drawn to the defendant until he heard his fellow officers' shouted warnings, whereafter he turned and saw them struggling with the defendant. Wolfe and Savino both confirmed Ashbey's account of their unsuccessful efforts to secure the defendant's hands both before and after they brought him to the floor, and of the defendant's eventual submission to handcuffing once they moved away from him and Ashbey threatened to shoot him. Wolfe further testified that after the defendant was subdued, a search of his clothing revealed a small silver handgun in his right front pants pocket and a cigarette box containing suspected drugs in his left front pants pocket. The handgun was a .22 caliber Jennings semiautomatic pistol with five rounds in the magazine but none in the chamber. The contents of the cigarette box were later determined, by testing at the state forensic laboratory, to be marijuana and crack cocaine.

Upon leaving the café, the defendant, who had once played youth basketball on a team that Nordstrom coached, told her that he would never pull a gun on her. In his testimony, although he denied pulling a gun on Nordstrom, the defendant confirmed that as he left the café he said to her, “Brigitte, I would never pull a gun out on you.” Thereafter, Savino transported the defendant to the police station for processing.

At the station, Savino waited with the defendant outside of the booking room. Seated and handcuffed, the defendant studied Savino's face and asked him where he lived. Savino ignored the question. The defendant then asked Savino where his mother lived and said that he would molest her and enjoy the process. The defendant, while staring at Savino's face, then stated that he would hold a grudge against him: “No matter how long I'm in jail for, no matter how rich I ever got, I still remember your face, and I'd still hold my grudge.” Finally, the defendant asked Savino, “[w]hat if I see you tomorrow outside of work leaning outside of my job?” When Savino responded, “[w]hat if?” the defendant stated, “I'd kick your ass.”

Savino believed that the defendant's statements were genuine threats to himself and his family. He testified that although he had been insulted on the job before, he took the defendant's statements seriously because they concerned his family. Savino testified that he felt threatened because he believed that his address could be found on the Internet.

The state also presented testimony from James Stephenson, a state firearms tool mark examiner. Stephenson testified that, based upon his examination of the defendant's gun, it was an operable, .22 caliber Jennings semiautomatic handgun with a magazine containing five bullets. There was no bullet in the chamber. Stephenson testified that to prepare the gun for firing, a would-be shooter would have to pull back the slide and release it, causing a cartridge to be transferred from the magazine in the handle of the gun to the chamber. Although this action, known as “racking the gun,” could be performed in a matter of seconds, it required deliberate action. If the gun was not racked, and thus had no bullet in the chamber, it could not be fired.

Following a jury trial, the defendant was convicted on all eight counts of the substitute information, including those charging him with attempted assault in the first degree, reckless endangerment in the first degree and threatening in the second degree.³ He was sentenced on all charges to a total effective term of twenty years imprisonment, execution suspended after fourteen years, and five years of probation.⁴ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that insufficient evidence was presented at trial to sustain his conviction of attempted assault in the first degree. Specifically, he argues that the evidence was insufficient to prove the mental state required for the commission of that offense, to wit: that at the time of his challenged conduct, he had the intent to cause serious physical injury to another person. On that score, the defendant argues that the alleged conduct upon which the state bases its claim of attempt against him—the pointing of an operable semiautomatic pistol at Nordstrom, with no bullet in the chamber and no effort by him to put one in there by racking the pistol—is simply too equivocal to support a finding, beyond a...