State v. Fuller, (AC 17328)

CourtAppellate Court of Connecticut
Writing for the CourtHEALEY, J.
Citation56 Conn. App. 592,744 A.2d 931
PartiesSTATE OF CONNECTICUT v. JANCIS L. FULLER
Decision Date15 February 2000
Docket Number(AC 17328)

56 Conn. App. 592
744 A.2d 931

STATE OF CONNECTICUT
v.
JANCIS L. FULLER

(AC 17328)

Appellate Court of Connecticut.

Argued September 14, 1999.

Officially released February 15, 2000.


Lavery, Landau and Healey, Js.

56 Conn. App. 593
Jancis L. Fuller, pro se, the appellant (defendant)

Kevin T. Kane, state's attorney, with whom, on the brief, was Lisa Herskowitz, assistant state's attorney, for the appellee (state).

Opinion

HEALEY, J.

The defendant, Jancis L. Fuller, was charged in a substitute information in five counts. The first and second counts charged the defendant with attempted murder in violation of General Statutes §§ 53a-49 (a) (2)1 and 53a-54a.2 The alleged victims in the first and second counts were Robert C. Leuba and

56 Conn. App. 594
Hope Leuba, respectively. The third and fourth counts charged the defendant with attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (5).3 The alleged victims in the third and fourth counts were Robert C. Leuba and Hope Leuba, respectively. The fifth count charged the defendant with carrying a pistol or revolver on her person without a permit in violation of General Statutes § 29-35 (a).4 After a trial to a jury, the defendant was found not guilty on the first and second counts but guilty on the third, fourth and fifth counts.5

On appeal, the defendant claims that the trial court improperly (1) refused to instruct the jury on certain requested lesser included offenses, (2) refused to grant her motion for judgment of acquittal on the fifth count, (3) admitted chemical evidence of gunshot residue collected from the steering wheel of her car, (4) admitted opinion evidence on the question of whether she committed the alleged crimes and (5) admitted nonexpert opinion about her psychiatric condition. In addition, the defendant claims that the trial judge, Parker, J., was improperly influenced by his professional relationship with Robert C. Leuba.6 We affirm the judgment of the trial court.

56 Conn. App. 595
The jury reasonably could have found the following facts. Robert C. Leuba and his wife, Hope Leuba, resided in the Mystic section of Groton since 1960. The defendant's parents lived in that same general neighborhood since 1960. The Leubas had known the defendant since she was young.7

On June 29, 1995, the Leubas were awakened at about 4 a.m. by some "thuds" caused by something hitting their house while they were asleep in the second floor bedroom, which is located toward the front of the house. Robert C. Leuba went to the telephone and called 911. Hope Leuba looked out of one of the two bedroom windows and saw "flashes" and heard "popping sounds" coming from the driveway. She saw a "shape" of someone walking down the driveway toward the street. Four spent .32 caliber Smith and Wesson8 shell casings later were found by the police near the end of the driveway.

Members of the Groton police department arrived within five to ten minutes. The police and Robert C. Leuba found what appeared to be two bullet holes in the front of the Leubas' freshly painted house. One hole was in a clapboard of the front wall over the front porch area adjoining the living room. The other hole was in the exterior front wall of the second floor bedroom and, as Robert C. Leuba described it, "Actually, I think the pillow [that he was sleeping on] is right on the other side of that wall from that hole."9 The two bullets were removed from the holes. A third bullet hole was found on the sill of the window out of which Hope Leuba had looked when she saw the flashes and heard the gunfire. This bullet completely penetrated the clapboard at an angle, and also penetrated the copper flashing and was

56 Conn. App. 596
embedded in what was believed to be a wood surface. Certain marks or "defects" were caused to the recently reshingled roof of the front porch by the bullets as they ricocheted off the roof. Police and forensic personnel, using the two bullet holes near the second floor windows and the "defects," established trajectories of the bullets, which were consistent with the area from which Hope Leuba saw "flashes."

On the morning of June 28, 1995, the defendant attended a pretrial conference on an unrelated criminal matter at the geographical area number ten courthouse in New London. Early that evening, she went to her father's house, accompanied by Robert Rocco and Bennie Leonardi. Thereafter, Leonardi drove the defendant and Rocco to the defendant's and Rocco's West Street apartment in New London, which they shared.

After supper, the defendant went out, having told Rocco that she was going to her father's house to check the mail. She did not go to her father's house, but returned to the apartment between 9 and 9:30 p.m. and went to bed. At approximately 3:30 a.m. the next morning, the defendant told Rocco that she was going out for coffee. Rocco went back to sleep and woke up at about 6 a.m., at which time he checked her room and found her sleeping.

On the afternoon of June 29, 1995, after having interviewed Rocco, Lieutenant Joseph Illinger and Detective Walter Conley of the Groton police located the defendant sitting in her parked car in the parking lot of the New London public library on Huntington Street. Before Conley could say anything to her, she said: "You're here because of the Leubas, aren't you?" Conley said, "Yes." When Conley and Illinger confronted her in the parking lot, information concerning the shooting had not been "out to the media at all." Conley testified that "she immediately went into a tirade of comments about the

56 Conn. App. 597
Leubas, negative comments, that the Leubas had been persecuting her for twenty years, that Mr. Leuba had hired two men in Providence to break her." Conley further testified that she "appeared very tense, shaking... very angry."

After the police officers removed two empty gun holsters from the defendant's car, Conley placed her under arrest. A towing company towed her car to the police department lot, where the steering wheel was swabbed for possible gunshot residue with swabs from an atomic absorption kit. Later, at about 8 p.m. on June 29, 1995, a warrant was executed on the West Street apartment occupied by Rocco and the defendant. While neither a firearm nor ammunition were found in the apartment, a gun cleaning kit was found in a container on the floor underneath the kitchen table.

I

The defendant claims first that the trial court improperly refused to instruct the jury on her two requested lesser included offense charges of reckless endangerment in the second degree pursuant to General Statutes § 53a-64 and attempted assault in the third degree pursuant to General Statutes §§ 53a-49 and 53a-61 (a) (3), which she claims are lesser included offenses of attempted assault in the first degree. Furthermore, she argues that these lesser offenses would have afforded the jury a continuum of subjective culpability within which to view the alleged criminal act and the shooter's intent in relation thereto. Specifically, she claims that the requested lesser included offenses met the second prong of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), which requires that it not be possible to commit the greater offense, as described in the information or bill of particulars, without having first committed the lesser offense. We do not agree.

56 Conn. App. 598
We note that the state charged the defendant with two counts of attempted murder and two counts of attempted assault in the first degree, with one count of each charge referring to Robert C. Leuba and the other count of each charge referring to Hope Leuba. As pertains to the attempted murder counts, the long form information alleges that the defendant, "with the intent to cause the death" of the Leubas, did attempt to cause death "by means of the discharge of a firearm." With reference to the assault counts, the information alleged that the defendant, "with the intent to cause physical injury to" the Leubas, "did attempt to cause such injury" to them "by means of the discharge of a firearm." She was found not guilty on the attempted murder counts

A

We first take up the defendant's claim that attempted assault in the third degree is a lesser included offense of attempted assault in the first degree. We do not agree and no discussion of Whistnant is necessary to dispose of this part of her claim.

We agree with the state's analysis. Our criminal attempt statute, § 53a-49 (a), requires that a defendant act "with the kind of mental state required for commission of the [particular] crime...." General Statutes § 53a-61 (a) (3) provides in relevant part that a person is guilty of assault in the third degree when, "with criminal negligence, he causes physical injury to another person by means of a deadly weapon ... [or] a dangerous instrument...." General Statutes § 53a-3 (14) provides in relevant part that "[a] person acts with `criminal negligence' with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists...." Applying these statutes, it can be seen that attempted assault in the third degree is not a cognizable offense

56 Conn. App. 599
because a person cannot, in an attempt to commit assault in the third degree, intend that an unintended injury occur. In State v. Foster, 202 Conn. 520, 528-29, 522 A.2d 277 (1987), our Supreme Court reasoned that "to be guilty of attempt, a defendant's conscious objective must be to cause the result which would constitute the substantive crime. A person cannot attempt to commit a crime which requires that an unintended result occur ... because it is logically impossible for one to intend to bring about an unintended result." See State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983), on appeal after remand, 196 Conn. 507, 493 A.2d...

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42 practice notes
  • Wendt v. Wendt, (AC 18388)
    • United States
    • Appellate Court of Connecticut
    • September 5, 2000
    ...573, 582, 484 A.2d 435 (1984); Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984); State v. Fuller, 56 Conn. App. 592, 627 n.34, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298 The plaintiffs own trial pleadings reveal that her counsel knew or shoul......
  • State v. Griggs, No. 18049.
    • United States
    • Supreme Court of Connecticut
    • July 29, 2008
    ...State v. Williams, 44 Conn.App. 231, 238, 689 A.2d 484, cert. denied, 240 Conn. 918, 692 A.2d 815 (1997); see also State v. Fuller, 56 Conn.App. 592, 606, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S.Ct. 262, 148 L.Ed.2d 190 (2000); see generall......
  • Cancel v. Comm'r of Corr., AC 40977
    • United States
    • Appellate Court of Connecticut
    • May 7, 2019
    ...which case the evidence may be received for what it is worth." (Citations omitted; internal quotation marks omitted.) State v. Fuller , 56 Conn. App. 592, 619–20, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L.Ed. 2d 190 (2000). "A......
  • LPP Mortg. Ltd. v. Underwood Towers Ltd., AC 43542, (AC 43575)
    • United States
    • Appellate Court of Connecticut
    • July 20, 2021
    ...law in this state. We, as an intermediate appellate court, cannot reconsider the decisions of our highest court.’); State v. Fuller , 56 Conn. App. 592, 609, 744 A.2d 931 (‘[i]t is not within our function as an intermediate appellate court to overrule Supreme Court authority’), cert. denied......
  • Request a trial to view additional results
42 cases
  • Wendt v. Wendt, (AC 18388)
    • United States
    • Appellate Court of Connecticut
    • September 5, 2000
    ...573, 582, 484 A.2d 435 (1984); Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984); State v. Fuller, 56 Conn. App. 592, 627 n.34, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298 The plaintiffs own trial pleadings reveal that her counsel knew or shoul......
  • State v. Griggs, No. 18049.
    • United States
    • Supreme Court of Connecticut
    • July 29, 2008
    ...State v. Williams, 44 Conn.App. 231, 238, 689 A.2d 484, cert. denied, 240 Conn. 918, 692 A.2d 815 (1997); see also State v. Fuller, 56 Conn.App. 592, 606, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S.Ct. 262, 148 L.Ed.2d 190 (2000); see generall......
  • Cancel v. Comm'r of Corr., AC 40977
    • United States
    • Appellate Court of Connecticut
    • May 7, 2019
    ...which case the evidence may be received for what it is worth." (Citations omitted; internal quotation marks omitted.) State v. Fuller , 56 Conn. App. 592, 619–20, 744 A.2d 931, cert. denied, 252 Conn. 949, 748 A.2d 298, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L.Ed. 2d 190 (2000). "A......
  • LPP Mortg. Ltd. v. Underwood Towers Ltd., AC 43542, (AC 43575)
    • United States
    • Appellate Court of Connecticut
    • July 20, 2021
    ...law in this state. We, as an intermediate appellate court, cannot reconsider the decisions of our highest court.’); State v. Fuller , 56 Conn. App. 592, 609, 744 A.2d 931 (‘[i]t is not within our function as an intermediate appellate court to overrule Supreme Court authority’), cert. denied......
  • Request a trial to view additional results

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