State v. Clifton Owens

• Decision Date: 17 April 2007
• Docket Number: No. 26670.,26670.
• Citation: 100 Conn.App. 619,918 A.2d 1041
• Parties: STATE of Connecticut v. Clifton OWENS.
• Court: Connecticut Court of Appeals

918 A.2d 1041

100 Conn.App. 619

STATE of Connecticut v. Clifton OWENS.

No. 26670.

Appellate Court of Connecticut.

Argued October 23, 2006.

Decided April 17, 2007.

Cyd O. Oppenheimer, special public defender, with whom were George G. Kouros, special public defender, and, on the brief, Richard A. Reeve and Michael O. Sheehan, New Haven, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence Mariani, senior assistant state's attorney, for the appellee (state).

FLYNN, C.J., BISHOP and HARPER, Js.

BISHOP, J.

The defendant, Clifton Owens, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes § 53a-49 (a)(2) and 53a-54a, and risk of injury to a child in violation of General Statutes § 53-21(a)(1). On appeal, the defendant claims that (1) the trial court improperly instructed the jury as to intoxication, (2) the court failed to conduct an adequate inquiry into an allegation of juror misconduct, (3) the court improperly instructed the jury regarding the charges of attempt to commit murder and reckless assault in the first degree and (4) the evidence was insufficient to sustain his conviction of risk of injury to a child. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. The defendant and one of the victims, S,¹ had known each other for twenty-seven years on the day of the incident in question. Additionally, for approximately one and one-half years preceding April 1, 2003, S took care of the defendant's daughter every weekday while the defendant was at work.

On the evening of April 1, 2003, around 5 p.m., the defendant had finished work and arrived at S's residence to pick up his daughter. Upon arrival, S explained that she was "totally worn out physically, mentally, emotionally and spiritually" and told the defendant that she would not be able to take care of his daughter any longer. After a twenty minute argument, the defendant left and proceeded to his residence and testified to having "two tall glasses of rum and Coke." The defendant returned to S's residence around 7:45 p.m. He appeared to be very upset and was "ranting and raving." He then left but returned again around 10:20 p.m.

After arguing with the defendant and observing that he was starting to get very upset, S asked the defendant to leave. In response, the defendant struck S on her right temple causing her to lose consciousness. He then stabbed S with a knife in the arm and throat area, lacerating her trachea.

Hearing the loud commotion from her bedroom, S's twelve year old daughter, the victim C, ran into the kitchen to ascertain what was occurring. When she arrived, she observed that her mother was curled up in a ball with her knees to her chest and her arms over the top of her head, and the defendant was standing next to her "yelling and screaming at her." C told the defendant to leave her mother alone. This prompted the defendant to turn toward C. He yelled at her to "get the fuck out of here" and then "chased" her by running two or three steps toward her "with a knife in his hand," causing her to retreat to her bedroom.

In the meantime, Minerva Contreras, who lived in the basement and who also had heard the loud commotion, came upstairs. Contreras first saw C, who told her to be careful because the defendant had chased her with a knife. She then saw the defendant walking back toward the kitchen and decided to follow him. She observed S lying on the floor and the defendant standing over her with a knife in his hand. Contreras said something to the defendant that caused him to turn around and drop the knife. He then kicked S in the chest and departed from the residence.

Approximately twenty-five minutes after having left S's residence, the defendant entered the Naugatuck police department and announced that he "has just killed someone in Waterbury." Later, the defendant provided a sworn statement² that stated in relevant part that "earlier that evening he went to a friend's house and subsequently got into an argument with that friend, female friend that he had known for a long, long time. And the argument turned violent on his part and that he started hitting this female. And then it occurred in the kitchen area, so he reached into a drawer and took out a knife and proceeded to stab the female with the knife."

After the jury found the defendant guilty of attempt to commit murder and risk of injury to a child, the court sentenced him to a total effective term of imprisonment of twenty-five years.³ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court improperly instructed the jury on intoxication. Specifically, the defendant argues that the court's instruction on intoxication was so ambiguous and confusing that it impermissibly burdened his constitutional right to the presumption of innocence and lowered the state's burden of proof. The defendant concedes that this claim is unpreserved and seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁴ The state responds that if the instruction was incorrect, the defendant induced or waived any error and, therefore, cannot prevail on this claim. We agree with the state.

The following additional facts are pertinent to the defendant's claim. In the defendant's voluntary confession, given to the police on April 1, 2003, he suggested that he had been drinking alcoholic beverages prior to arriving at S's residence. Consequently, as part of the defendant's written request to charge, the defendant asked for an instruction on intoxication. After the parties made their closing arguments to the jury, the court gave the jurors final instructions, including an instruction on intoxication as framed by the defendant.⁵

Upon review of the record, we conclude that the defendant is precluded from claiming that the court improperly instructed the jury as to intoxication. Here, the defendant's request to charge on intoxication included the specific language to which he now objects. Even if there was error,⁶ it was induced, and, therefore, having induced the claimed error, the defendant cannot obtain Golding review of the unpreserved claim.

"The term induced error, or invited error, has been defined as [a]n error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. . . . It is well established that a party who induces an error cannot be heard to later complain about that error. . . . [T]o allow [a] defendant to seek reversal [after] . . . his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state [and the trial court] with that claim on appeal." (Internal quotation marks omitted.) State v. DiLoreto, 88 Conn.App. 393, 397-98, 870 A.2d 1095 (2005). Moreover, our Supreme Court has held that Golding review will not be afforded in cases of induced error. See State v. Cruz, 269 Conn. 97, 107, 848 A.2d 445 (2004) ("the defendant is not entitled to review of his claim of induced impropriety [under Golding] because he requested the very instruction that he now challenges"); State v. Alston, 272 Conn. 432, 456, 862 A.2d 817 (2005) ("[a] defendant may not present unpreserved claims of relief from induced error because review of induced error is not permissible under Golding"). Accordingly, we will not review this claim.

II

Next, the defendant claims that the court committed reversible error by failing to conduct an adequate inquiry after being presented with evidence of potential juror misconduct. We disagree.

The following additional facts are pertinent to our resolution of the defendant's claim. The jury commenced deliberations, after final instructions, on February 7, 2005. Near the conclusion of the proceedings for that day, the jury sent a note to the court requesting the playback of portions of the recorded testimony from four witnesses. Because of the lateness of the hour at the time of this request, the court informed the jurors to return the following day at 2 p.m., at which point the requested testimony would be ready for them to hear. The court instructed the jurors not to discuss the matter and dismissed them for the day.

The following day, before the jury was summoned to listen to the requested testimony, the jury sent the court another note, asking if it could take a vote before hearing the requested testimony. Counsel for the defendant posited that the note was an indication that the jurors had begun deliberating before the court instructed them to do so and argued consequently that the note should be ignored or a mistrial should be declared. The court, however, construed the note as a request for guidance as to whether the jury could resume deliberating before listening to the testimony requested the previous day. Accordingly, in response to the jury's note, the court reiterated to the jurors that deliberations were to be conducted only when all exhibits were in the room and once the jurors were all assembled. The court indicated that if the jury wanted to hear the requested testimony, it was prepared to play it. The court then sent the jury to resume deliberating.

Later that same day, the jury returned with its verdict. The defendant subsequently filed a motion for a new trial based, in part, on alleged juror misconduct. Specifically, the defendant argued that a new trial should have been granted because the court did not conduct a preliminary inquiry of the jurors asking them whether, before submitting their question asking if they could take a vote prior to hearing the requested testimony, they had deliberated in violation of the court's instructions. The court...