State v. Flowers, No. 17334.

• Decision Date: 13 June 2006
• Docket Number: No. 17334.
• Citation: 278 Conn. 533,898 A.2d 789
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Cornelius FLOWERS.

898 A.2d 789

278 Conn. 533

STATE of Connecticut v. Cornelius FLOWERS.

No. 17334.

Supreme Court of Connecticut.

Argued January 4, 2006.

Decided June 13, 2006.

William B. Westcott, Norwalk, for the appellant (defendant).

Denise B. Smoker, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Patrick Griffin, assistant state's attorney, for the appellee (state).

BORDEN, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

KATZ, J.

The defendant, Cornelius Flowers, appeals, following our grant of certification, from the judgment of the Appellate Court affirming the judgment of the trial court convicting the defendant of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2).¹ State v. Flowers, 85 Conn.App. 681, 858 A.2d 827 (2004). The sole issue in this appeal is whether the Appellate Court properly rejected the defendant's claim that the trial court's instruction misled the jury by allowing it to find the defendant guilty of conduct that is not a cognizable crime. Id., at 701, 858 A.2d 827. We answer that question in the negative, and, accordingly, we reverse the Appellate Court's judgment.

The record reveals the following procedural history. The state charged the defendant in a three count, long form information. The first count of the information charged the defendant with burglary in the first degree in violation of § 53a-101 (a)(2) on August 5, 2000, at approximately 3 a.m. at 163-4 Mark Lane in Waterbury. Specifically, the state alleged that the defendant had entered "unlawfully in a building with intent to commit a crime therein and in the course of committing the offense, he intentionally inflicted or attempted to inflict bodily injury on [Stephen] Alseph. . . ." The second count of the information charged the defendant with attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 (a)(2) and 53a-59 (a)(4),² specifically alleging that on the same date the defendant had entered 163-4 Mark Lane at approximately 3 a.m. "with intent to cause serious physical injury to another person and while aided by two other persons actually present, intentionally did an act which under the circumstances as he believed them to be, constituted a substantial step in a course of conduct planned to culminate in an assault in the first degree . . . [by attempting] to cause serious physical injury to [Stephen] Alseph while aided by two other persons actually present. . . ." The third count charged the defendant with attempt to commit assault in the first degree in violation of §§ 53a-49 (a)(2) and 53a-59 (a)(1); see footnote 2 of this opinion; alleging that on the same date and at the same location the defendant had entered the premises at approximately 3 a.m. "with intent to cause serious physical injury to another person by means of a dangerous instrument [and] did an act which under the circumstances as he believed them to be, constituted a substantial step in a course of conduct planned to culminate in an assault in the first degree. . . [by attempting] to cause serious physical injury by means of a dangerous instrument to [Stephen] Alseph."

The jury was unable to reach a verdict on the two counts of attempt to commit assault in the first degree, but returned a verdict of guilty on the first degree burglary count. The trial court declared a mistrial on the two attempted assault counts and rendered judgment of conviction on the burglary count in accordance with the jury's verdict. The defendant appealed from the judgment of conviction to the Appellate Court claiming, inter alia, that the trial court's instructions improperly had allowed the jury to find the defendant guilty if it found that he had entered Stephen Alseph's apartment with the intent to commit an attempted assault. State v. Flowers, supra, 85 Conn.App. at 698, 858 A.2d 827. The Appellate Court affirmed the trial court's judgment of conviction. Id., at 706, 858 A.2d 827. Thereafter, we granted the defendant's petition for certification to appeal, limited to the following issue: "Did the Appellate Court properly conclude that the trial court's instruction on the charge of burglary in the first degree did not mislead the jury?" State v. Flowers, 272 Conn. 910, 863 A.2d 703 (2004).

The Appellate Court opinion recites the following evidence presented to the jury. "On the night of August 4, 2000, the defendant went to the Malibu Club (club) in Waterbury, as did Stephen Alseph. Sometime later, [Stephen] Alseph's wife, Keisha Alseph, arrived at the club with her friends, Chantel Paris and Tierra Mourning. At closing time, approximately 2 a.m. on August 5, 2000, Stephen Alseph had an argument with Paris and Mourning in the parking lot of the club. Keisha Alseph left the club in the company of Paris and Mourning. Stephen Alseph left the club alone.

"Keisha Alseph and her friends arrived at the parking lot adjacent to the apartment at 163-4 Mark Lane about the same time Stephen Alseph did. Another argument ensued, and Paris struck Stephen Alseph on the head with a beer bottle, causing a small cut. Paris and Mourning got into their vehicle and left. The Alsephs entered their apartment and prepared for bed.

"Approximately thirty minutes later, they heard a loud bang at the front door. Three men entered the bedroom and assaulted Stephen Alseph. One of the men struck him on the head with a lamp, causing him to fall onto the bed, bleeding. Keisha Alseph attempted to protect her husband as the three men continued to beat him. After making reference to `some girl,' the three men left the apartment. Stephen Alseph grabbed a knife and chased them. The men saw him, and one of them said, `He's coming back for more.' When they saw the knife, the men got into an automobile and sped away. Stephen Alseph chased the vehicle on foot for a distance, and he saw Paris and Mourning driving away from the scene.

"Stephen Alseph returned to his apartment where his wife was waiting. The police arrived about five minutes later. The police found Stephen Alseph bleeding from the arms, face and head. Keisha Alseph had cuts on her stomach and arms. Stephen Alseph was taken to St. Mary's Hospital where he received sutures for his head wound. Keisha Alseph informed the police that the defendant was one of the three assailants. She recognized him because he had worked with one of her cousins at a McDonald's restaurant. She also implicated Paris and Mourning.

"A short while later, the police received a telephone call from Victoria Vasquez, the defendant's former girlfriend. Vasquez informed the police that at approximately 2:45 a.m., she began receiving telephone calls from the defendant. She said that he had called and immediately hung up. Vasquez stopped answering the telephone, and the defendant left messages on her answering machine to `stop playing games' because he was `in trouble and needed her help.' The defendant arrived at Vasquez' home about fifteen minutes later. Vasquez refused to let the defendant inside because she was afraid of him and had a protective order against him. The defendant left. Vasquez informed the police that she thought that the defendant had returned to an address on Wall Street [in Waterbury] from which his telephone calls had originated.

"The police went to 72 Wall Street and found the defendant and his cousin, Devon Hicks, hiding under a bed in the first floor apartment. The defendant identified himself as Thomas Flowers. The police separately transported Keisha Alseph and Stephen Alseph to the Wall Street apartment to identify the two men who had been found hiding there. Keisha Alseph and Stephen Alseph identified the defendant and Hicks as two of the men who had assaulted them that night. They did not waiver in their identification of the defendant, whom they also identified at trial. The defendant was arrested.

"A few days after his arrest, the defendant met with Vasquez at a commuter parking lot in Cheshire with assistance from Hicks. The defendant wanted to know why Vasquez had called the police. The defendant and Vasquez met again on February 13, 2001, the day before Vasquez was to report to the office of the state's attorney pursuant to a subpoena issued in the case against Hicks. The defendant asked Vasquez to lie for him, to tell the police that he was on foot that night and that he was with her at the time of the burglary. Vasquez initially agreed to the defendant's request because she was trying to work things out with him for the sake of their child. Five months later, however, Vasquez told the prosecutor that the defendant had come to her house in a light colored automobile and that he had not been with her earlier [on the evening of the burglary]. The defendant subsequently telephoned Vasquez and threatened her not to testify against him.

"The defendant testified at trial to establish his alibi that he was not present during the break-in. He testified that he had been at the club on the night in question and had witnessed a disturbance in the parking lot. According to the defendant, someone had sprayed Mace, which got into his eyes. He and Hicks then went to the home of his friend, Stephen Gyadu, located at 72 Wall Street, to wash his face. He telephoned Vasquez to ask her for a ride because Hicks had fallen asleep. Because Vasquez would not talk to him, he walked to her house. He walked back to [72] Wall Street and lay down on the floor next to Hicks' bed. The defendant denied assaulting Stephen Alseph and also denied giving the police a false name." State v. Flowers, supra, 85 Conn.App. at 685-88, 858 A.2d 827.

After the jury found the defendant guilty of burglary in the first degree; see footnote 1 of this opinion; the defendant appealed from the trial court's judgment of conviction to the Appellate Court, claiming, inter alia, that, pursuant to the trial court's instructions, in order to find the defendant guilty of burglary in the first...