State v. Jones

• Decision Date: 25 July 2006
• Docket Number: No. 24020.,24020.
• Citation: 902 A.2d 17,96 Conn.App. 634
• Parties: STATE of Connecticut v. Anthony JONES.
• Court: Connecticut Court of Appeals

902 A.2d 17

96 Conn.App. 634

STATE of Connecticut v. Anthony JONES.

No. 24020.

Appellate Court of Connecticut.

Argued January 5, 2006.

Decided July 25, 2006.

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Gary A. Mastronardi, Bridgeport, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John P. Doyle, Jr., assistant state's attorney, for the appellee (state).

FLYNN, BISHOP and McDONALD, Js.^*

BISHOP, J.

The defendant, Anthony Jones, appeals from the judgment of conviction, rendered after a jury trial, of attempted assault of a peace officer in violation of General Statutes §§ 53a-167c (a)(1)¹ and 53a-49 (a), and possession of a weapon in a motor vehicle in violation of General Statutes § 29-38. On appeal, he claims that (1) attempted assault of a peace officer is not a cognizable offense under Connecticut law, (2) there was insufficient evidence to establish attempted assault of a peace officer, (3) the trial court abused its discretion in permitting the state to open its case, after the defendant rested, to offer additional evidence of possession of a weapon in a motor vehicle and (4) the failure of defense counsel to move for acquittal on the basis of a lack of evidence of a pistol permit constituted ineffective assistance of counsel. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. At approximately 2 a.m. on March 27, 2000, Officers Edwin DeJesus and Michael Ortiz of the New Haven police department were dispatched in two marked cars to Clinton Avenue Park in New Haven to investigate a report of a fight. As the officers approached the park, they observed a group of people run and enter a maroon Toyota Camry and drive off at a high rate of speed toward Maltby Street. The officers also observed two males, one of whom was later identified as the defendant, quickly run to and enter a Chevrolet Caprice, which was parked adjacent to the park. DeJesus drove his vehicle in front of the Caprice to prevent it from being driven away, and he activated the overhead lights on his police cruiser. As DeJesus activated his cruiser lights, Ortiz approached the Caprice from behind and also activated his overhead cruiser lights.

As Ortiz approached, the defendant put his car in reverse and sped directly toward Ortiz' vehicle. Ortiz put his car in reverse and backed onto Clinton Avenue to avoid a collision. After barely missing a collision with Ortiz' vehicle, the defendant then spun his vehicle into the middle of Clinton Avenue and drove down Clinton Avenue toward Grand Avenue. Both officers pursued the defendant, with Ortiz in the lead. DeJesus activated his vehicle's siren.

Clinton Avenue ends at Grand Avenue. The defendant crossed Grand Avenue and entered the parking lot of a senior residence at 50 Grand Avenue with Ortiz following close behind. DeJesus entered the parking lot from the other end in an effort to block the defendant's only path of egress. The defendant continued at a high rate of speed toward DeJesus, causing DeJesus to make a sharp left turn onto a ramp for the handicapped, almost striking the building. DeJesus testified that, had he not taken this evasive maneuver, the defendant would have struck his car.

As the defendant left the parking lot, he turned his vehicle right and proceeded along Grand Avenue, then to East Grand Avenue, with both officers still in pursuit. At the intersection of East Grand Avenue and Russell Street, the defendant lost control of his vehicle, which came to rest in the driveway of a nearby house. Ortiz drove in behind the defendant's car, and DeJesus drove in on the left side of the car. As the officers approached the defendant's vehicle, both occupants exited the car and began to flee on foot. DeJesus apprehended the passenger. The defendant, with Ortiz in pursuit, ran around the house, jumped over a fence, ran back to the car, put it in reverse and sped back along East Grand Avenue. Ultimately, the defendant lost control of his vehicle, and, after backing it into a building, he was apprehended by the police.

At the time the defendant was apprehended, the officers found two Ruger .357 magnum pistols in the vehicle he had been driving, one located on the floor behind the driver's seat, and the other on the floor behind the front passenger's seat.

The defendant was charged with two separate counts of attempted assault of a peace officer in violation of §§ 53a-167c (a)(1) and 53a-49 (a), and one count of possession of a weapon in a motor vehicle in violation of § 29-38. After a jury trial, the defendant was convicted of one count of attempted assault of a peace officer and possession of a weapon in a motor vehicle, and he was given a total effective sentence of fourteen years incarceration. This appeal followed.

I

The defendant first asserts that the crime of attempted assault of a peace officer does not exist under Connecticut law. Specifically, the defendant claims that because the very essence of a criminal attempt is the defendant's intention to cause the proscribed result, it follows that there can be no crime of attempted assault of a peace officer because one cannot attempt to cause an unintended act. The defendant misconstrues the statute.

A person is guilty of assault of a peace officer in violation of § 53a-167c (a) when "with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer . . . is acting in the performance of his or her duties, (1) such person causes physical injury to such peace officer . . . ." "It is plain from a reading of General Statutes § 53a-49 (a) that the intent required for attempt liability is the intent required for the commission of the substantive crime." (Internal quotation marks omitted.) State v. Zollo, 36 Conn. App. 718, 734, 654 A.2d 359, cert. denied, 234 Conn. 906, 660 A.2d 859 (1995).² The criminal result must be the conscious object of the actor's conduct. The requisite intent for assault of a peace officer is the intent to prevent the peace officer from performing his duties rather than the intent to cause the resulting injury. "Intent to cause physical injury is not a prerequisite to culpability under this statute." State v. Nixon, 32 Conn.App. 224, 237, 630 A.2d 74 (1993), aff`d, 231 Conn. 545, 651 A.2d 1264 (1995). The intent portion of the statute in question relates, then, to the intent to impede a police officer and not to the harm that results from such interference. Thus, one may be culpable under the statute if one attempts to impede, regardless of whether one intends the consequence of injury to a police officer.

In sum, we conclude that when coupled with the attempt statute, the intent required for the crime of attempted assault of a peace officer is the intent to prevent the officer from performing his duties. Under § 53a-167c, one may be held liable for assault of a peace officer whether the injury is intended or not. See State v. Nixon, 231 Conn. 545, 552-54, 651 A.2d 1264 (1995). Because there is no mens rea element regarding the injury, which distinguishes this case from those relied on by the defendant, there is no inconsistency between the elements of the underlying crime and the intent to prevent the officer from performing his duties required by the criminal attempt statute.³

In support of his contention that the crime of attempted assault of a peace officer is not a cognizable crime in Connecticut, the defendant cites cases that support the proposition that it is a logical impossibility either to attempt or to conspire to achieve an unintentional or reckless result. See State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983) (attempt to commit manslaughter does not exist under Connecticut law because it is not possible to have specific intent to commit an unintentional killing), on appeal after remand, 196 Conn. 507, 493 A.2d 890 (1985); State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986) (conspiracy to commit arson in third degree not cognizable because arson requires reckless mental state).⁴ The defendant's reliance on these cases, however, is inapposite because the underlying crimes in those cases either have dual intent requirements, the intent to engage in the proscribed conduct and the intent to cause a specific result, or, by their language, the harm resulting from the proscribed behavior must be unintentional. Neither is so in the present case. Accordingly, the defendant's claim that the crime of attempted assault of a peace officer is not cognizable in Connecticut must fail.

II

The defendant next claims that he could not have been convicted of attempted assault of a peace officer because there was no evidence of injury to DeJesus. We disagree.

"An attempt of a crime is accomplished when a person intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. . . . The defendant also must have possessed the specific intent to commit the underlying crime. An attempt is an inchoate crime, meaning that it is unfinished or begun with the proper intent but not finished." (Citation omitted; internal quotation marks omitted.) State v. Flowers, 85 Conn.App. 681, 707, 858 A.2d 827 (2004), rev'd on other grounds, 278 Conn. 533, 898 A.2d 789 (2006). "[T]he attempt is complete and punishable, when an act is done with intent to commit the crime, which is adapted to the perpetration of it, whether the purpose fails by reason of interruption . . . or for other extrinsic cause." (Internal quotation marks omitted.) State v. Torres, 47 Conn.App. 205, 220, 703 A.2d 1164 (1997).

To establish the defendant's culpability for the crime of attempted assault of a peace officer, the state needed to prove only that the defendant...