State v. Davis

• Decision Date: 27 August 2002
• Docket Number: No. 16649.,16649.
• Citation: State v. Davis, 261 Conn. 553, 804 A.2d 781 (Conn. 2002)
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Dorian DAVIS.

804 A.2d 781

261 Conn. 553

STATE of Connecticut v.Dorian DAVIS.

No. 16649.

Supreme Court of Connecticut.

Argued April 18, 2002.

Decided August 27, 2002.

COPYRIGHT MATERIAL OMITTED

SULLIVAN, C.J., and NORCOTT, KATZ, VERTEFEUILLE and ZARELLA, Js.

Moira L. Buckley, deputyassistant public defender, for the appellant(defendant).

Michael E. O'Hare, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Laura Rose, assistant state's attorney, for the appellee(state).

SULLIVAN, C.J.

The defendant, Dorian Davis, appeals from the judgment of conviction, rendered after a jury trial, on charges of assaulting a peace officer in violation of General Statutes(Rev. to 1997)§ 53a-167c (a),¹ and interfering with a peace officer in violation of General Statutes § 53a-167a (a).²

The defendant claims on appeal that the trial court: (1) improperly instructed the jury as to the interrelationship of General Statutes § 53a-23³and§§ 53a-167a (a)and53a-167c (a) and, consequently, relieved the state of its burden of proving beyond a reasonable doubt every element set forth in §§ 53a-167c (a)(1)and53a1-67a (a);(2) improperly denied the defendant's request for a self-defense instruction pursuant to General Statutes § 53a-19;⁴(3) improperly denied his motion claiming that the state's use of three peremptory challenges was a pretext for racial discrimination; (4) improperly admitted the state's presentation of rebuttal testimony that the defendant had not been shot by a police officer; and (5) violated the defendant's constitutional guarantee against double jeopardy when it imposed separate sentences for the convictions of assault of a peace officer and interfering with a peace officer because the latter is a lesser included offense of the former.We agree with the defendant's first claim and, accordingly, reverse the judgment of conviction.We also address the second claim, as it is likely to arise in the new trial, and we conclude that the defendant was not entitled to a charge on self-defense on charges of violating §§ 53a-167cand53a-167a.Because our resolution of these claims disposes of the appeal, we need not address the remaining claims.

The following evidence was presented to the jury.Hartford police officer Richard Rodriguez testified that on December 24, 1997, he was operating his police cruiser when he observed a group of individuals, including the defendant, loitering in front of a grocery store located at the corner of Capen and Martin Streets in Hartford.Rodriguez stopped his vehicle next to the grocery store and requested that the crowd disperse.Several members of the group complied, but others remained congregated in front of the store.The defendant was one of the individuals who had refused to leave the area.When Rodriguez repeated his direction to move along, the defendant shouted profanities, stated that he"owned the block" and continued to ignore Rodriguez' repeated demands to leave.At that point, Rodriguez parked his cruiser, exited from it and directed the defendant to come to him because he was under arrest for disorderly conduct.⁵Rodriguez directed the defendant to place his hands on the cruiser and attempted to frisk him for weapons.The defendant refused to keep his hands on the cruiser, however, but continually attempted to turn around to face Rodriguez.At that point, the defendant and Rodriguez became engaged in a struggle as the defendant tried to turn around and fight and Rodriguez attempted to keep him from turning around.

Rodriguez testified that, at some point, he had radioed for police assistance.Officer William Rivera arrived during Rodriguez' struggle with the defendant.Rivera joined in the attempt to gain control of the defendant so that they could handcuff him.The defendant then grabbed Rodriguez' nightstick and attempted to strike Rivera with it.Rodriguez was able to grab the stick, however, and it ultimately fell to the ground.At that point, Rodriguez heard a gunshot.Rodriguez did not know who had fired the shot.

Believing that Rivera had been shot, Rodriguez threw the defendant to the ground under him and sprayed him with pepper spray.Rodriguez' back and shoulder were injured during the fall to the ground.Rodriguez was also affected by the pepper spray so that he could not continue in his attempt to subdue the defendant.At that point, a number of police officers arrived at the scene and handcuffed the defendant.

Rivera testified that he arrived at the scene in time to observe Rodriguez ordering the crowd to disperse and to hear the defendant swearing at Rodriguez.He also saw that Rodriguez was unable to frisk the defendant because the defendant refused to keep his hands on the cruiser, but kept reaching toward his waist.As Rivera approached the defendant and Rodriguez in order to assist Rodriguez, he saw the defendant remove a silver handgun from the waistband of his pants.Rivera grabbed the gun and punched the defendant in the face.At the same time, the gun discharged.The gun then fell to the ground.It was later recovered as evidence.Rivera's arms and right wrist were injured during the struggle.

The defendant testified that, on the night of December 24, 1997, he was at the corner of Capen and Martin Streets when Rodriguez pulled up in his cruiser and ordered the defendant to "come here."Rodriguez did not direct the defendant to leave the corner and did not tell him that he was under arrest.The defendant complied with Rodriguez' request.He did not swear at Rodriguez or say that he owned the block.As he approached the cruiser, Rodriguez grabbed him and told him to put his hands on the trunk of the cruiser.Rodriguez had a gun and other items in his left hand and asked the defendant whom they belonged to.The defendant told Rodriguez that they were not his, and Rodriguez then struck him in the face and neck.At that point, the defendant tried to flee.He testified that he may have made physical contact with Rodriguez as he attempted to turn around, but he did not hit him.As the defendant attempted to flee, Rivera approached from behind him and both officers threw him to the ground.At the same time, the defendant heard the sound of a gunshot close behind him.While the defendant was on the ground, Rodriguez and Rivera hit him in the legs, arms, and ribs, and sprayed him with Mace.Eventually, they handcuffed him and put him in a cruiser.The police officers sprayed him with Mace again while he was in the cruiser.They then drove him to the police station and left him alone in the cruiser, where he passed out.Ultimately, the defendant was taken to Hartford Hospital, where he was sedated.

Andrew Brown, an acquaintance of the defendant who witnessed the incident, testified that Rodriguez had not indicated that the individuals at the corner of Capen and Martin Streets were loitering and never told the defendant that he was under arrest.He also testified that the defendant did not swear at the police and that the defendant had complied with Rodriguez' demands.He saw Rodriguez strike the defendant, at which point a scuffle began.During the scuffle, Brown heard a gunshot, but did not see who had the gun.Immediately after the gunshot, Brown heard the defendant scream.

The defendant testified that he was shot in the back of the leg during the struggle with the officers.A bullet was removed from the defendant's leg on August 4, 1999.Robert Hathaway, a firearms and tool mark examiner, testified that the bullet removed from the defendant's leg was fired from the gun that was recovered from the scene of the struggle.In rebuttal, the state presented testimony by hospital personnel that the defendant did not have a gunshot wound when he was taken into custody.

The state charged the defendant with one count of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a)(1)⁶and53a-49(a)(2),⁷ two counts of assault of a peace officer in violation of § 53a-167c (a)(1), one count of interfering with a peace officer in violation of § 53a-167a (a), one count of criminal possession of a firearm in violation of General Statutes(Rev. to 1997)§ 53a-217 (a),⁸ one count of carrying a pistol without a permit in violation of General Statutes(Rev. to 1997)§ 29-35,⁹ one count of illegal possession of a controlled substance in violation of General Statutes § 21a-279 (c),¹⁰ one count of illegal possession of a controlled substance within 1500 feet of real property comprising a public elementary school in violation of § 21a-279 (d),¹¹ one count of illegal possession of a narcotic substance in violation of § 21a-279 (a),¹² and one count of illegal possession of a narcotic substance within 1500 feet of real property comprising a public elementary school in violation of § 21a-279 (d).

Following a jury trial, the defendant was convicted of two counts of assault on a peace officer in violation of § 53a-167c, and one count of interfering with a peace officer in violation of § 53a-167a, but was acquitted of the remaining charges.On January 20, 2000, the defendant appealed from the judgment of conviction to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c)andPractice Book§ 65-1.

I

We first address the defendant's claim that the trial court's instructions pertaining to § 53a-23 violated his right to due process by relieving the state of its obligation to prove all of the elements of the crimes of assault on a peace officer and interfering with a peace officer in violation of, respectively, §§ 53a-167c (a)(1)and53a1-67a (a).Specifically, the defendant claims that the trial court's instruction pertaining to § 53a-23 misled the jury to believe that the defendant could not resist a peace officer to defend himself, no matter how unlawful the conduct of the police officer was, and that the effect of the instruction was to direct the...