State v. Gaynor

Decision Date16 December 1980
Citation438 A.2d 749,182 Conn. 501
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Michael GAYNOR.

Richard T. Meehan, Jr., Bridgeport, for appellant (defendant).

Ernest J. Diette, Jr., Asst. State's Atty., with whom, on the brief, was John J. Kelly, State's Atty., for appellee (state).


COTTER, Chief Justice.

The defendant was convicted by a jury of the crime of assault in the first degree in violation of § 53a-59(a)(1) of the General Statutes, 1 and has appealed from a judgment on the verdict.

The defendant raises two issues on appeal; whether the court erred: (1) in denying the defendant's motion for judgment of acquittal based upon insufficiency of the evidence and (2) in limiting the defendant's cross-examination of the state's medical witness.


From the evidence presented, the jury could have found the following facts. At approximately twelve midnight on November 2-3, 1978, Michael Gaynor entered Chetti's Place, a bar and restaurant located in Derby, accompanied by an unidentified individual. Gaynor approached Gary Taylor, a patron at the bar, and indicated that he would "... like to have a talk." Taylor suggested that they talk in a backroom, but the defendant insisted that the meeting take place outside. Once outside, Taylor displayed a knife and told Gaynor that he would use it "if anything happened." Gaynor told Taylor that nothing would happen and Taylor closed the knife and put it back in his pocket. At this time, the unidentified individual who had arrived with the defendant joined Gaynor and Taylor in the parking lot, standing one foot behind and two feet to the right of the defendant. As the defendant began to punch Taylor, the unidentified individual moved away from the defendant, drew a handgun and fired a shot at Taylor. Taylor grabbed the defendant Gaynor and held Gaynor as a shield between himself and the person firing the shots. Two more shots were fired, hitting Taylor in the left arm and left leg. As Taylor turned to go back inside the bar, two bullets struck him in the back. The defendant and the unknown individual ran down the street, got into the same car, and drove off together. Taylor was taken to Griffin Hospital where he underwent surgery and was hospitalized for ten days.

At trial, Taylor admitted that at a meeting with the defendant on September 12, 1978, he (Taylor) had assaulted the defendant with a broken beer bottle and that at the time of the Chetti's Place meeting, Gaynor still bore the scars of the earlier attack. The state presented evidence of an interview with the defendant conducted by Inspector Gerard Nuber of the Derby Police Department. Nuber testified that when Detective Germain asked the defendant why he did not let the police handle the previous assault by Taylor, the defendant responded: "... Yes, well, I guess I should have."


" 'When a jury verdict is challenged on the ground that the evidence is insufficient to sustain the verdict, the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt ....' Each essential element of the crime charged must be established by such proof ... and although it is within the province of the jury to draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture." State v. Festo, 181 Conn. 254, 258-59, 435 A.2d 38 (1980); State v. Sarasino, 178 Conn. 416, 418-19, 423 A.2d 102 (1979). It is the cumulative impact of a multitude of facts, and not any one fact, which establishes guilt in a case involving substantial circumstantial evidence. State v. Brown, 168 Conn. 610, 616, 362 A.2d 910 (1975).

The defendant contends that the sometimes contradictory testimony of the state's witnesses was insufficient to support the jury verdict of guilty beyond a reasonable doubt as to assault in the first degree. The defendant points to the witnesses' different versions of the melee in the parking lot as well as the state's failure to demonstrate that the defendant actually fired the shots as evidence sufficient to raise reasonable doubt as to his guilt. 2 The short answer to the first argument is that witnesses' memories and perceptions often vary. This variance, due to the excitement of the moment, the differing vantage points of the observers and the mysteries of the associative processes of the human mind, is a normal and common phenomenon. Differing testimony does not, in and of itself, indicate the web of fabrication suggested by the defendant. Whether there seems to be contradiction between different witnesses or confusion in the testimony, it is precisely this type of factual conflict that Anglo-American jurisprudence has traditionally entrusted to the jury. See State v. Reardon, 172 Conn. 593, 597, 376 A.2d 65 (1977); Hamill v. Neikind, 171 Conn. 357, 358, 370 A.2d 959 (1976); State v. Gosselin, 169 Conn. 377, 381, 363 A.2d 100 (1975). It is for the jury to untangle the knotted and sometimes broken lines of testimony and we will disturb their fact finding only where there is insufficient evidence to justify a finding of guilt beyond a reasonable doubt. State v. Ortiz, 169 Conn. 642, 646, 363 A.2d 1091 (1975). It is the province of the jury and not of the court to resolve discrepancies in a witness' testimony which in any way reflect upon his credibility. United States v. Tropiano, 418 F.2d 1069 (2d Cir. 1969), cert. denied, 397 U.S. 1021, 90 S.Ct. 1258, 25 L.Ed.2d 530 (1970).


The defendant further claims that the state did not adduce any testimony that the defendant actually fired a gun. The state argues that while the defendant was not shown to have pulled the trigger himself, he may be held to the same degree of responsibility as his accomplice pursuant to General Statutes § 53a-8. The court instructed the jury that the defendant could be found guilty of assault in the first degree in any one of several ways under General Statutes § 53a-8. Section 53a-8 provides: "A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender."

On the evidence presented, the jury could reasonably have concluded that the defendant intentionally aided and abetted the unidentified gunman in a plan of retaliation for Taylor's previous assault on Gaynor. The defendant and the unidentified gunman arrived at the bar together. The unidentified individual joined the defendant at the meeting in the parking lot and stood right beside Gaynor. The unknown individual began to fire at Taylor at the same time that the defendant began to punch Taylor. Subsequent to the shooting, the defendant and the gunman ran down the road together and left in the same car. The defendant's statement to Inspector Nuber was additional evidence that the attack in Chetti's parking lot was an intentional joint effort. From these facts, it was not unreasonable for the jury to conclude that the defendant aided and assisted in the crime of first degree assault against Taylor. Construing the evidence in the way most favorable to sustaining the verdict rendered by the jury; State v. Tucker, 188 Conn. 406, 435 A.2d 986 (1980); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978); State v. Ortiz supra, 169 Conn. 645-46, 363 A.2d 1091; State v. Malley, 167 Conn. 379, 381, 355 A.2d 292 (1974); we conclude that there was sufficient evidence for the jury to find that the defendant intentionally aided the unidentified gunman. 3


The defendant's second claim is that the trial court erred in limiting his cross-examination of a physician called by the state. Dr. Ferdinand Montegut examined Taylor at the Griffin Hospital emergency room and performed a three hour operation on him. The state called Dr. Montegut to testify as to the nature and seriousness of the wounds suffered by the victim. 4 Dr. Montegut stated his opinion that the injuries sustained by Taylor constituted "serious physical injury" as that term is defined in General Statutes § 53a-3. 5

On cross-examination Dr. Montegut indicated that prior to his testimony the state's attorney had read to him the statutory definition of serious physical injury. Defense counsel then posed a hypothetical question to the doctor. The question presented the basic facts of the victim Taylor's previous assault on the defendant. 6 The state objected on the grounds that the question (1) assumed facts not in evidence, (2) was not material to the issues in this case, and (3) attempted to interject the previous assault upon the defendant into this case. In response to the state's attorney's objection to the hypothetical question, defense counsel argued that he was testing the expertise of an expert witness by posing a hypothetical question and that in such circumstances the question need not be based on facts in evidence. It was defense counsel's claim that where the statute provides four grounds for finding serious physical injury, and the doctor concluded that one of the requirements was satisfied, he may test the doctor's basis for that conclusion by posing questions regarding the other categories constituting "serious physical injury." The trial court sustained the state's objection on materiality grounds and the defendant has claimed that this limitation on cross-examination denied his right to confrontation.


The right of an accused to effectively cross-examine an adverse witness is embodied in the confrontation clause of the sixth amendment. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974);...

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