State v. Jones, No. 18143.

• Decision Date: 23 December 2008
• Docket Number: No. 18143.
• Citation: 289 Conn. 742,961 A.2d 322
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Michael D. JONES.

961 A.2d 322

289 Conn. 742

STATE of Connecticut v. Michael D. JONES.

No. 18143.

Supreme Court of Connecticut.

Argued September 4, 2008.

Decided December 23, 2008.

Kent Drager, senior assistant public defender, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were John A. Connelly, state's attorney, and, on the brief, John Davenport, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

ZARELLA, J.

The defendant, Michael D. Jones, appeals from the judgment of conviction, rendered after a jury trial, of one count of assault in the first degree in violation of General Statutes § 53a-59(a)(3)¹ (first degree reckless assault) for throwing an unopened forty ounce beer bottle at the victim and causing him serious physical injury. The defendant claims that reversal is required because the trial court improperly (1) permitted the jury to consider the charge of first degree reckless assault under count two of the information after it had found him not guilty of the lesser included offense of assault in the third degree in violation of General Statutes § 53a-61(a)(3)² (third degree negligent assault) under count one of the information, (2) failed to instruct the jury on assault in the third degree in violation of § 53a-61 (a)(2)³ (third degree reckless assault) as a lesser included offense of first degree reckless assault under count two of the information, (3) failed to instruct the jury on assault in the second degree in violation of General Statutes § 53a-60(a)(1)⁴ (second degree intentional assault without a dangerous instrument)⁵ and assault in the third degree in violation of § 53a-61(a)(1)⁶ (third degree intentional assault) as lesser included offenses of assault in the first degree in violation of § 53a-59(a)(1)⁷ (first degree intentional assault with a dangerous instrument) under count one of the information, and (4) instructed the jury on self-defense. The defendant also claims that the evidence was insufficient to prove that he recklessly engaged in conduct creating a risk of death, that he acted under circumstances evincing an extreme indifference to human life and that he used more force than necessary to defend himself against his alleged attackers. We reverse in part the judgment of the trial court.

The following facts are relevant to our resolution of this appeal. On the evening of September 27, 2003, the victim, Jeffrey Cotto (Jeffrey) went with his brother, Edwin Cotto (Edwin), and Edwin's girlfriend, Amarilis Rivera (Amarilis), to Rivera-Hughes Park in Waterbury to play basketball. After Jeffrey and Edwin finished playing, they started walking up the street with Amarilis toward a Home Depot store. On their way, they passed the defendant and three other men. The defendant appeared to have been drinking and was holding an unopened forty ounce beer bottle in his hand. The defendant and Edwin exchanged provocative words, followed by blows, with the defendant pushing Edwin in the face and Edwin punching the defendant with his fist. Edwin then ran off toward the Home Depot store. When a man who was sitting nearby got up and blocked Edwin's path, Edwin "kneed him" and knocked him down in order to get away. The defendant briefly chased Edwin but ultimately turned back and started running toward Jeffrey and Amarilis with the bottle still in his hand.

At about the same time, Jeffrey started running in the direction of the defendant and the Home Depot store to flee from the defendant's companions, who had been threatening him. When the defendant and Jeffrey, who were quickly approaching each other from opposite directions, were approximately three feet apart, the defendant threw the unopened bottle at Jeffrey, hitting him in the head.⁸ Jeffrey attempted to escape from the defendant but fell to the ground. According to Amarilis, the defendant resumed hitting Jeffrey after he fell down, but Jeffrey neither confirmed nor denied this allegation, testifying only that the bottle had shattered upon impact, the beer had spilled onto his clothes, his head was bleeding and he had difficulty getting up because he felt dizzy.

After the defendant departed, Amarilis helped Jeffrey to his feet, and they continued walking toward the Home Depot store. A short time later, they stopped to rest at a nearby church, where they eventually were found by Edwin and a Home Depot employee. The employee called the police and an ambulance, which took Jeffrey to a hospital. Although the hospital treated and released Jeffrey that night, he was taken to another hospital the following day after Edwin discovered him lying naked and sweaty on his bedroom floor. A computed tomography (CT) scan revealed a blood clot in the right frontal lobe of Jeffrey's brain.⁹ Following brain surgery to remove the clot, Jeffrey remained in the hospital for approximately one month. Although he recovered from the immediate trauma, he has suffered continuing problems with his memory as a result of the injury.

The defendant was arrested and charged in a two count information¹⁰ with first degree intentional assault with a dangerous instrument in violation of § 53a-59(a)(1) (count one)¹¹ and first degree reckless assault (count two).¹² The defendant pleaded not guilty and elected to be tried by a jury.

At trial, the defendant testified that he had thrown the bottle at Jeffrey in self-defense after Edwin punched him and he saw Jeffrey coming toward him. He specifically testified that the altercation began when Edwin deliberately bumped into him as he was walking out of the park. According to the defendant, angry words were exchanged, and Edwin made racial slurs and cursed at the defendant. The defendant started backing up, but Edwin and Jeffrey kept coming toward him. When one of the defendant's companions called the defendant's name, he glanced away and, just as he turned his head back toward Edwin and Jeffrey, Edwin punched him in the face. The defendant then saw Jeffrey approaching and threw the bottle at him from about two feet away. The defendant testified that he did not know where the bottle hit Jeffrey because he was not paying attention. After he threw the bottle, the defendant started "tussling" with Edwin and one of Edwin's companions. When someone screamed, Edwin and the defendant broke apart, and Edwin started running with his companion toward the Home Depot store. The defendant chased them until he got to the Home Depot parking lot, where he turned around and started walking back. The defendant testified that the reason he had thrown the bottle was because he feared for his safety. Having already been attacked by Edwin, he was feeling dizzy and scared and believed that Jeffrey, who was approaching him, was about to hit him again.

During closing arguments, defense counsel contended that the case revolved around the issue of self-defense. Counsel asserted that the defendant had been trying to protect himself when he threw the bottle at Jeffrey because Edwin had just punched him and he had been trying to back away when Jeffrey started coming toward him. Defense counsel further asserted that, even under the state's version of events, it was Jeffrey who had been the aggressor because he had been running toward the defendant when the defendant threw the bottle.

The state argued that the defendant had not acted in self-defense because he was the one who had provoked the incident. Moreover, there was nothing to prevent the defendant from retreating. The state also argued that, under a theory of self-defense, the defendant was permitted under the law to use only the amount of force necessary to thwart the aggressor, and that the defendant had used more force than necessary when he threw the bottle at Jeffrey from only two feet away. The state further disagreed with defense counsel's interpretation of testimony that Jeffrey was running toward the defendant when the incident occurred, suggesting that such testimony did not mean that Jeffrey was running "at" the defendant. The state instead posited that Jeffrey had been running in the defendant's direction because he was following his older brother Edwin, who had fled in the same direction toward the Home Depot store a short time earlier. The state also argued that, because the defendant was taller than Edwin or Jeffrey, the defendant's testimony that he was fearful of being attacked lacked credibility.

Both parties filed requests to charge on lesser included offenses. The state requested instructions on assault in the second degree with a dangerous instrument in violation of § 53a-60(a)(2)¹³ (second degree intentional assault with a dangerous instrument) under count one of the information and assault in the second degree in violation of § 53a-60(a)(3)¹⁴ (second degree reckless assault) under count two of the information. The defendant requested instructions on second degree intentional assault without a dangerous instrument, second degree intentional assault with a dangerous instrument, and third degree intentional assault under the first count of the information, and second degree reckless assault and third degree reckless assault under the second count of the information. Although the defendant's request to charge on third degree assault under count two of the information cited § 53a-61(a)(3), which requires a finding of criminal negligence and the use of a dangerous instrument, the language that the defendant actually used in his written request was identical to that used in subsection (a)(2) of the statute, which requires a finding of reckless conduct¹⁵ and does not contain the element of a dangerous instrument.

When the court heard the parties prior to instructing the jury, the state remarked that, although it was not urging the court to give instructions on lesser included offenses, it was "appropriate" for the court to give such instructions and that it would not object if the...