State v. Chyung

• Decision Date: 18 April 2017
• Docket Number: SC 19375
• Citation: 157 A.3d 628,325 Conn. 236
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Chihan Eric CHYUNG

325 Conn. 236

157 A.3d 628

STATE of Connecticut

v.Chihan Eric CHYUNG

SC 19375

Supreme Court of Connecticut.

Argued January 18, 2017

Officially released April 18, 2017

Conrad Ost Seifert, assigned counsel, for the appellant (defendant).

David J. Smith, senior assistant state's attorney, with whom, on the brief, was Michael Regan, state's attorney, for the appellee (state).

Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.

ROGERS, C. J.

The primary issue that we must decide in this appeal is whether the trial court properly denied the defendant's motion for a judgment of acquittal and for a new trial after the jury rendered legally inconsistent guilty verdicts on charges of murder and of manslaughter in the first degree with a firearm. The state charged the defendant, Chihan Eric Chyung, with murder in violation of General Statutes § 53a–54a and manslaughter in the first degree with a firearm in violation of General Statutes § 53a–55a(a)¹ in connection with the shooting death of his wife, Paige Chyung (victim). After a trial, the jury rendered verdicts of guilty on both charges. Thereafter, the defendant filed a motion for judgment of acquittal and for a new trial contending that the verdicts were legally inconsistent because, to convict the defendant of murder, the jury had to find that he had a specific intent to kill the victim, whereas, to convict him of manslaughter in the first degree, the jury was required to find that he acted recklessly. The trial court denied the motion on the ground that the defendant had waived the claim by failing to request a jury instruction that he could not be convicted of both charges. The trial court also concluded, however, that the verdict of guilty on the manslaughter charge must be vacated pursuant to case law holding that, when a defendant is convicted of both a greater offense and a lesser included offense, thereby violating constitutional double jeopardy principles, the proper remedy is to vacate the conviction on the lesser included offense. After vacating the guilty verdict of manslaughter in the first degree with a firearm, the trial court sentenced the defendant to forty years imprisonment on the murder charge. This appeal followed.² We conclude that the trial court improperly determined that the defendant had waived the claim that the guilty verdicts on the charges of murder and manslaughter in the first degree with a firearm were legally inconsistent by failing to request a jury instruction on the issue. Rather, we conclude that legally inconsistent verdicts involve jury error that may be raised for the first time after the verdicts have been returned or on appeal. Because we conclude that the verdicts were legally inconsistent, and because there is no way for the trial court or this court to know which charge the jury found to be supported by the evidence, neither verdict can stand. Accordingly, we conclude that both guilty verdicts must be vacated and the case must be remanded to the trial court for a new trial.

The jury reasonably could have found the following facts, which support either the guilty verdict on the charge of manslaughter in the first degree with a firearm or the guilty verdict on the charge of murder. The defendant testified that he and the victim, who were married in May, 2009, lived at 257 Norwich Avenue in Norwich. According to the defendant, on the evening of June 2, 2009, they had an argument about the victim's purchase of new tires for her truck. The victim was upset because the defendant told her that she had paid too much for the tires. She left the residence, telling the defendant, "I can't care if you're here when I get back." The defendant and the victim then had several telephone conversations, during which they continued to argue. The defendant ultimately decided that he should leave the residence and he packed a bag with his belongings. He then placed the bag by the kitchen door and waited for the victim to return.

The defendant testified that the victim returned to the residence at about 7:30 p.m. The defendant and the victim continued to argue, and the defendant decided that he would leave and go to a friend's house in New Haven. He then retrieved his pistol from a nightstand in the second floor bedroom and brought it downstairs to the kitchen, intending to pack it in his bag. He put the bag on the kitchen table and, as he attempted to open the bag by pulling on the zippers, the gun discharged. The defendant testified that he had not known that the gun was loaded. After the gun fired, the defendant looked up and saw the victim, who looked scared. She then fell to the floor. Believing that the victim was dead, the defendant grabbed his bag, went to his truck and drove away from the residence.

As he was driving, the defendant called a friend and told him that the victim had been shot. The friend told the defendant that he should return to the residence and call 911. The defendant then drove back to the residence, called 911 while still in his truck and reported that he had shot the victim.

Thomas Lazzaro, a patrol officer with the Norwich Police Department (department), testified that he and other members of the department responded to the defendant's 911 call. Upon arriving at the defendant's residence, the police arrested him. They kicked in the door to the residence and found the victim's body on the kitchen floor. Lazzaro observed that the house was in disarray and that items were "thrown all over the place ...." In the living room, the victim's purse was on the floor and its contents were strewn "all over the area." Pieces of a broken ice cube tray were found scattered around the first floor and, in the second floor bedroom, Lazzaro observed a broken ashtray.

Damien Martin, a patrol officer with the department, testified that, after the defendant was given a Miranda warning³ at the scene of the shooting, he was asked what had happened. The defendant stated that he and the victim had an argument about a fishing pole that he had purchased because the victim was upset about the expense. He also stated that he had been drinking. After deciding to leave the residence, he packed a suitcase and put it on the kitchen table. He then decided to pack his handgun. As he attempted to put the gun into the suitcase, it accidentally fired and struck the victim.

Amber Levesque testified that she and her boyfriend, Richard Hernandez, lived in an apartment in a building next door to the defendant's residence on the date of the shooting. At approximately 9:30 p.m., she heard a man and a woman arguing in the residence. After approximately twenty minutes, the argument stopped. Levesque then heard the woman scream and, approximately fifteen seconds later, a loud bang. Approximately two minutes after that, she heard a door slam. She then went to bed. Between approximately 11 and 11:30 p.m., Hernandez' mother, who lived in the same apartment, came into the bedroom and said that there were police in front of the defendant's residence. Hernandez testified that, starting at approximately 9:30 p.m., he heard arguing from the defendant's residence that lasted for approximately one-half hour. He then heard a woman scream, followed by a gunshot.

Frank Evangelista, a physician employed by the Office of the Chief Medical Examiner, testified that he performed an autopsy on the victim. During the autopsy, Evangelista observed a gunshot wound

to the victim's forehead and multiple areas of blunt trauma, including two bruises on her left chest, an abrasion on her back, and a bruise on each thigh. There was gunpowder stippling around the head wound, indicating that the gun had been one to three feet away from the victim's head when it was fired. An X–ray showed that the bullet had entered the victim's forehead and traveled to the back of her skull, causing her death.

Gregory Danas testified for the defendant as an expert in the handling of firearms. Danas testified that the gun that the defendant had fired was a "model Glock 19 ...." He further testified that, on the basis of his discussions with the defendant about the events leading up to the shooting, "any time [a] firearm is handled in that fashion, [there] is a high degree of probability, regardless of who's touching the gun, that that gun is going to go off," and that it was possible that the discharge was accidental.

The defendant was charged in a two count substitute information with murder in violation of § 53a–54a and manslaughter in the first degree with a firearm in violation of § 53a–55a(a). During closing arguments, the state argued that the evidence established that the defendant was guilty of murder because he pointed the gun at the victim and pulled the trigger with the intent to cause her death.⁴ The defendant argued that, to the contrary, the evidence showed that the gun discharged because he had handled it carelessly and negligently.

The jury returned verdicts of guilty on both the charge of murder and the charge of manslaughter in the first degree with a firearm. Thereafter, the defendant filed a motion for judgment of acquittal and for a new trial in which he contended, among other things, that the verdicts were legally inconsistent because the murder conviction required the jury to find that he had acted with the specific intent to cause the victim's death and the conviction on manslaughter in the first degree with a firearm required the jury to find that he had acted recklessly. The trial court denied the motion for a new trial on the ground that the defendant had failed to request a jury instruction that he could not be convicted on both charges. Cf. State v. Kitchens , 299 Conn. 447, 466, 10 A.3d 942 (2011) (defendant waives claim based on improper jury instruction when "defense counsel acquiesces in the instructions following a meaningful opportunity to review them outside the rush of trial, participates in an on-the-record charge conference designed to allow counsel...