State v. Carter

• Decision Date: 18 August 2015
• Docket Number: No. 19145.,19145.
• Citation: 120 A.3d 1229,317 Conn. 845
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Kenneth R. CARTER.

317 Conn. 845

120 A.3d 1229

STATE of Connecticut

v.Kenneth R. CARTER.

No. 19145.

Supreme Court of Connecticut.

Argued March 18, 2015.

Decided Aug. 18, 2015.

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

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

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

Opinion

McDONALD, J.

The defendant, Kenneth R. Carter, appeals from the judgment of the Appellate Court affirming the judgment of conviction of attempt to commit assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–59 (a)(1) and various other offenses.¹ On appeal, the defendant contends that (1) there was insufficient evidence to establish beyond a reasonable doubt his intent to inflict serious physical injury on another, as required for a conviction of attempt to commit assault in the first degree, and (2) the Appellate Court improperly determined that there was sufficient evidence for a conviction of that offense on the basis of a theory that the state did not pursue at trial, in violation of the theory of the case principle. We conclude that there was sufficient evidence from which the jury could have found that the defendant intended to inflict serious physical injury under a view of the evidence fully consistent with the state's theory at trial. Accordingly, we affirm the Appellate Court's judgment.

The Appellate Court's opinion sets forth the following facts that the jury reasonably could have found. “[O]n October 29, 2008, 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....

“It was decided ... that [Nordstrom and Lieutenant James Bee would rendezvous with other officers and] proceed to the cafe', 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.... Nordstrom and Bee were both dressed in plainclothes, 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.... As they entered, Nordstrom, who was carrying her unholstered service pistol to her side ... 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.

“Wolfe and Savino ... [immediately rushed toward the defendant and began] struggling with [him] 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 ... [pointed his .22 caliber patrol rifle at the defendant and] ordered [him] 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....

“[A]fter 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....

“Upon leaving the café, the defendant, who had once played youth basketball on a team that Nordstrom coached, told her [‘I would never point a gun at you.’]² ... Thereafter, Savino transported the defendant to the police station for processing....

“The state also presented testimony from James Stephenson, a state firearms tool mark examiner. Stephenson testified that [the gun was operable and that] ... to prepare [it] 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.” (Footnotes altered.) State v. Carter, 141 Conn.App. 377, 379–83, 61 A.3d 1103 (2013).

The record reveals the following additional facts and procedural history. The defendant was subsequently charged with several offenses, including attempt to commit assault in the first degree. See footnote 1 of this opinion. At trial, the defendant took the stand in his own defense. He admitted that he was in possession of a gun, but claimed that it had been given to him by Mumford earlier that evening and that he had not displayed it. He contended that the officers had mistaken a silver cell phone that had been in his hand for a gun.

During presentation of the state's case, it elicited evidence confirming that no cell phone had been recovered from the defendant at the scene. In addition, the state underscored the obviousness of the officers' status by both eliciting testimony as to the manner in which Nordstrom and Bee had been dressed and entering as full exhibits photographs of their shirts, which showed the word “POLICE” emblazoned on the front in large, bright yellow letters on a dark blue background. In closing argument, the state asserted: “What does the defendant do when he knows that he is now going to be confronted by the police? He pulls a handgun, a handgun that is loaded with five bullets ... in the magazine. He points the weapon at ... Nordstrom.”

The jury found the defendant guilty on all counts. See footnote 1 of this opinion. The trial court thereafter rendered judgment in accordance with the verdict, and imposed a total effective sentence of twenty years imprisonment, execution suspended after fourteen years, and five years of probation.

The defendant appealed to the Appellate Court, claiming, among other things, that there was insufficient evidence for the jury to find beyond a reasonable doubt that he intended to inflict serious physical injury. State v. Carter, supra, 141 Conn.App. at 384, 61 A.3d 1103. The Appellate Court rejected the defendant's claims, and affirmed the judgment of conviction. Id., at 402, 61 A.3d 1103. Specifically, the Appellate Court concluded that, under the totality of the circumstances, there was sufficient evidence from which the jury could have found intent. Id., at 387–92, 61 A.3d 1103. In reaching this conclusion, the Appellate Court hypothesized that, because of the defendant's illegal possession of a gun and drugs, the jury reasonably could have concluded that he would not have displayed a gun to the police. Id., at 388, 61 A.3d 1103. The court further opined that the jury reasonably could have concluded that the defendant mistook one of the officers for the “white dude” for whom the defendant was “lying in wait,” or mistook the officers for friends of the white dude who had come to aid their friend. Id., at 389, 61 A.3d 1103.

Thereafter, we granted the defendant's petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude that there was sufficient evidence to prove that the defendant intended to cause serious physical injury as required to sustain a conviction for [attempt to commit] assault in the first degree ...?” State v. Carter, 308 Conn. 943, 66 A.3d 886 (2013). The defendant claims that the evidence was not sufficient because the mere act of pointing a gun at another person is “too equivocal to permit a rational fact finder to find beyond a reasonable doubt that the defendant intended to cause [a person] ... serious physical injury.” The defendant further claims that, to remedy this deficiency, the Appellate Court improperly relied on a mistaken identity/transferred intent theory that directly conflicts with the theory that the state advanced at trial, in violation of the theory of the case principle.

In response, the state contends that there was ample evidence other than the mere pointing of the gun to prove that the defendant had the requisite intent. The state further argues that the theory of the case principle does not apply to appellate review of the sufficiency of the evidence, but that, even if it does, there is nothing inconsistent...