State v. King

• Decision Date: 11 December 1990
• Docket Number: No. 13727,13727
• Citation: 216 Conn. 585,583 A.2d 896
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Roy A. KING.

Page 896

583 A.2d 896

216 Conn. 585

STATE of Connecticut v. Roy A. KING.

No. 13727.

Supreme Court of Connecticut.

Argued Sept. 28, 1990.

Decided Dec. 11, 1990.

David J. Burke, Special Public Defender, with whom were Pamela K. Elkow and, on brief, Peter A. Stroili, Stamford, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on brief, were Donald A. Browne, State's Atty., and Gary Nicholson, Asst. State's Atty., for appellee (State).

Before SHEA, CALLAHAN, GLASS, HULL and BORDEN, JJ.

CALLAHAN, Associate Justice.

The defendant, Roy Anthony King, was charged in a substitute information with the crimes of assault in the first degree in violation of General Statutes § 53a-59(a)(3), ¹ arson in the first degree in violation of General Statutes § 53a-111(a)(2), ² and attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a(a). ³ He was found guilty by a jury of all three counts of the substitute information and was sentenced by the trial court to consecutive terms of imprisonment totaling forty years. ⁴

The jury reasonably could have found the following facts. The charges against the defendant arose out of an incident that occurred in the C cell block at the Bridgeport Community Correctional Center in the early morning hours of June 20, 1988. At about 3:10 a.m. on that date, correctional officers found cell eleven in C block ablaze and its occupant Keith Commerford on fire. The door to Commerford's cell was tied shut with a bed sheet so that Commerford was unable to exit. As a result of the fire and his inability to escape, Commerford sustained first and third degree burns over 60 percent of his body. The defendant occupied cell thirteen in the same cell block in which Commerford was housed.

A search of Commerford's cell after the fire disclosed a wad of toilet paper, a partially burned matchbook and burned newspapers and clothing amongst the debris. A liquid, nonpetroleum based accelerant was used to start and fuel the fire. The defendant was familiar with the flammable potential of an aerosol spray disinfectant that was available to the inmates for cleaning purposes. ⁵ This particular disinfectant had an alcohol base and, if sprayed into a container, became a liquid that, if ignited, would burn with a blue flame. The flames in Commerford's cell were described as blue in color by the witnesses to the fire.

Just prior to the fire, the defendant was involved in a dispute with Commerford because he believed that Commerford had "snitched" to Carl Zelinsky, another inmate, that the defendant had stolen a handmade greeting card that was Zelinsky's property. ⁶ Zelinsky and Commerford confronted the defendant in his cell about the card. Thereafter, the defendant called Commerford a "snitch," told him to "watch his back," and threatened to "get" him. Subsequently, the defendant told another inmate, Carl Barnes, that "he was going to burn up the [Commerford's] cell that night ... with toilet paper or something."

Although the entrance to C block was locked, the individual cells were not locked and the inmates were free to use the bathroom at the end of the cell block corridor during the night. Other inmates of C block had, in fact, seen the defendant outside of his cell, in the common corridor, in the vicinity of the victim's cell prior to the time that they heard screams and saw fire emanating from cell eleven. Commerford, himself, testified that he saw King outside his cell when he was awakened by the fire.

The defendant claims on appeal that the trial court should not have: (1) admitted evidence that the defendant was involved in a fight with a witness in the courthouse during a lunch break on the last day of the trial or instructed the jury as it did regarding evidence of the fight; (2) denied his motion to dismiss or elect counts, and his motion for a new trial, or instructed the jury as it did regarding assault in the first degree and attempted murder, all of which resulted in an inconsistent jury verdict and the denial of his right to a fair trial; (3) denied his request during the cross-examination of state police officer John J. Buturla for a copy of Buturla's report concerning his interviews with inmates of the Fairmont cell block of the Bridgeport Correctional Center; (4) denied his motion for acquittal that was based on the claimed failure of the state to present sufficient evidence to convict; or (5) allowed the victim to exhibit his injuries to the jury.

We agree with the defendant that a new trial is necessary on the assault and attempted murder charges because the verdicts that the jury returned on those two counts are inconsistent. We also conclude that a remand is necessary in order to determine the validity of the defendant's third claim. We find the defendant's other claims unpersuasive.

I

The defendant first claims that the trial court incorrectly admitted evidence on rebuttal that, during the trial, the defendant had been involved in a fight with a prosecution witness in the detention area of the Bridgeport Superior Court. He also claims that the trial court improperly instructed the jury regarding this rebuttal evidence.

A deputy sheriff, who supervised the detention area at the courthouse, testified on rebuttal that on the last day of the trial, after Pedro Nunez, a correctional center inmate, had testified for the state, the defendant and another inmate had fought with Nunez in a detention cell during the luncheon recess. The avowed purpose for which the evidence was offered by the state was to demonstrate a consciousness of guilt on the part of the defendant. The defendant did not object to the admission of the testimony concerning the fight at the time of trial or question its purpose at the time it was admitted.

An objection must be made and an exception taken in order to raise an evidentiary claim as a ground for error on appeal. Practice Book § 288; Ferreira v. Storms, 159 Conn. 259, 264, 268 A.2d 657 (1970); Skinner v. Skinner, 154 Conn. 107, 110, 221 A.2d 848 (1966). Because the defendant failed to object to what is clearly a question of the admissibility of the state's evidence, we decline to consider his evidentiary claim. To rule otherwise would amount to trial by "ambuscade" of the trial judge. State v. Siemon, 172 Conn. 19, 20, 372 A.2d 140 (1976); State v. DeGennaro, 147 Conn. 296, 304, 160 A.2d 480, cert. denied, 364 U.S. 873, 81 S.Ct. 116, 5 L.Ed.2d 95 (1960).

The defendant also contends that, even absent an objection to the admission of the evidence of the fight, we should consider his claim as "plain error" under Practice Book § 4185. ⁷ That section provides that this court "may in the interests of justice notice plain error not brought to the attention of the trial court." However, "[s]uch review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings." State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); State v. Miller, 202 Conn. 463, 483, 522 A.2d 249 (1987). This is simply not one of those situations. There is no plain error. ⁸

The defendant also contends that the trial court improperly commented on the fight in its instructions to the jury. Principally, he claims that the trial court preempted the function of the jury by telling the jurors that there was evidence in the case that the defendant and another prisoner "attacked" Nunez when there was no evidence in the record to support such a comment. The sheriff had, in fact, testified that he saw the defendant and another inmate "attacking Nunez." Since that testimony was admitted without objection, the jury could give it such weight as it saw fit; State v. Rawls, 198 Conn. 111, 118, 502 A.2d 374 (1985); and the trial court was free to comment on it as long as the court did so fairly and did "not direct or advise the jury how to decide the matter. State v. Mullings, 166 Conn. 268, 274, 348 A.2d 645 (1974)." State v. Storlazzi, 191 Conn. 453, 465-66, 464 A.2d 829 (1983); see also State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985).

In its charge the trial court emphasized to the jury that it was within the jury's province to decide the facts and that it was for the jurors to find whether in fact the fight had occurred, and to determine what weight, if any, to give it. The instruction did not direct or advise the jury how to decide the issue and fairly presented it to the jury in such a way that no injustice was done to the defendant. State v. Storlazzi, supra, 191 Conn. at 467, 464 A.2d 829. We find no merit to this claim.

II

The defendant next claims that he is entitled to a new trial because the trial court should not have instructed the jury that it could find him guilty of both attempted murder and assault in the first degree in violation of § 53a-59(a)(3). He argues that the guilty verdicts thereafter returned on those two counts were legally and logically inconsistent and deprived him of due process of law. ⁹ We agree that the defendant is entitled to a new trial on those two counts of the substitute information.

The jury's verdict of guilty on the count of attempted murder required that the jury find that the defendant acted with the intent ¹⁰ to cause the death of the victim. General Statutes §§ 53a-49(a)(2) and 53a-54a(a). On the other hand, the jury's verdict of guilty on the count of assault necessitated a finding that the defendant acted recklessly, ¹¹ and thereby created a risk of death to the victim. General Statutes § 53a-59(a)(3). The intent to cause death required for a conviction of attempted murder, by definition, therefore, necessitated a finding that the defendant acted with the conscious objective to cause death. The reckless conduct necessary to be found for a conviction of assault under the subsection charged, however, required a finding that the defendant acted without such a...