State v. LaFleur

Decision Date28 September 2012
Docket NumberNo. 18757.,18757.
Citation51 A.3d 1048,307 Conn. 115
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Steeve LaFLEUR.

OPINION TEXT STARTS HERE

Richard E. Condon, Jr., senior assistant public defender, for the appellant (defendant).

Melissa L. Streeto, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James G. Clark, former senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, McLACHLAN, EVELEIGH, HARPER and VERTEFEUILLE, Js.**

EVELEIGH, J.

A jury found the defendant, Steeve LaFleur, guilty on various charges in two informations, both involving the physical assault of a female victim, which had been joined for trial pursuant to the state's motion. In the first case, regarding the victim, Larrisha Washington (Washington case), the defendant was found guilty of assault in the third degree in violation of General Statutes § 53a–61 (a),1 a class A misdemeanor, and two separate counts of violating a protective order in violation of General Statutes § 53a–223, a class D felony, and was found not guilty of one additional count of violating a protective order. In the second case, regarding the victim, Diana Hazard (Hazard case), the defendant was found guilty of assault in the first degree in violation of General Statutes § 53a–59 (a)(1),2 a class B felony, and violation of the conditions of release in the first degree in violation of General Statutes § 53a–222,3 a class D felony. The defendant thereafter pleaded guilty in the second part of the information in the Hazard case to a charge of being a persistent dangerous felony offender pursuant to General Statutes (Rev. to 2007) § 53a–40.4 After the trial court rendered judgment in accordance with the jury's verdict and the subsequent plea, the defendant appealed, 5 claiming that he is entitled to a judgment of acquittal on the charge of assault in the first degree in the Hazard case and a new trial in the Washington case. Specifically, on appeal, the defendant raises the followingclaims: (1) his conviction of assault in the first degree in the Hazard case must be reversed on the ground that the trial court improperly instructed the jury that [a] fist can be a dangerous instrument” within the meaning of § 53a–59 (a)(1); (2) if he prevails on his first claim, this court should not only reverse the defendant's conviction of assault in the first degree, but also remand the matter to the trial court with direction to render a judgment of acquittal as to that charge, where the defendant claims that, because a fist is not a “dangerous instrument” under § 53a–59 (a)(1), it follows that the state presented insufficient evidence to prove beyond a reasonable doubt that he committed assault in the first degree; (3) the joinder of the Hazard and Washington cases violated the defendant's due process right to a fair trial, where, under the second factor of the joinder test set forth in State v. Boscarino, 204 Conn. 714, 722–24, 529 A.2d 1260 (1987), the assault in the first degree charge in the Hazard case involved such brutal or shocking conduct that it inflamed the passions of the jury regarding the Washington case, and any jury instructions by the trial court were insufficient to cure the resulting prejudice; and (4) the trial court abused its discretion in admitting Hazard's entire statement regarding the assault as a prior consistent statement for rehabilitative and contextual purposes when the defendant did not introduce any portion of the statement and the entire statement was not relevant contextually to the limited areas highlighted during Hazard's cross-examination. We agree with the defendant as to claims one and two but disagree as to his third claim. Accordingly, we reverse the judgment in the Hazard case and remand that case to the trial court with direction to render judgment of acquittal on all counts, including the persistent dangerous felony offender count. Additionally, we affirm the judgment of the Washington case but vacate the sentence and remand that case for resentencing. In view of our resolution of these claims, it is not necessary for us to reach the defendant's fourth claim.

The jury reasonably could have found the following facts regarding the Hazard case. Hazard met the defendantin 2007 and started dating him in June, 2008. She lived with the defendant at his third floor apartment on West Division Street in New Haven for approximately three weeks in the summer of 2008. Thereafter, she moved to a friend's apartment that was located a couple of blocks from the defendant's apartment. On August 21, 2008, between midnight and 1 a.m., Hazard was walking home from a deli located at the corner of Dixwell Avenue and Bassett Street in New Haven. While walking on Dixwell Avenue, she came upon the defendant, who asked her with a raised and stern voice if she was “going to stop dealing with him, was that it?” When Hazard replied “yes,” the defendant, using his fists, began to assault Hazard. He first hit her very hard on the right side of her nose. Hazard heard her nose crack and felt pressure throughout her face. The defendant thereafter hit Hazard many times in the face, until she fell to the ground. While on the ground, the defendant kicked her in the abdomen.6 After the defendant left, Hazard remained on the ground for approximately five minutes and then went home to go to sleep. The next day, Hazard went to a police station to report the assault and then went to the emergency room, where she was treated for a number of facial fractures, including fractures to both bones in her nose, multiple fractures of her right eye socket and sinus, and substantial swelling and bruising above and below her right eye and throughout the nasal bridge. She received inpatient treatment for five days at Yale New–Haven Hospital and then stayed at a home in Greenwich for her safety.

The jury reasonably could have found the following facts regarding the Washington case. Washington and the defendant had been involved in a five year relationship and had one child. Shortly before July 24, 2008, Washington learned that the defendant had impregnated another woman. Washington telephoned the defendant at one point to confront him and threaten to take their child to Virginia. On July 24, at approximately 6:30 p.m., the defendant telephoned Washington and asked her to bring their daughter to see him at his apartment. When Washington and her daughter arrived in the vicinity of the defendant's apartment, Washington was admittedly angry, and she and the defendant exchanged words on Dixwell Avenue. The defendant punched Washington in the right side of her face. Subsequently, Washington went to the police station and reported that the defendant had punched her in the right side of her face; a police officer noticed a bump on the right side of her face. Additional facts will be set forth as necessary.

In the Hazard case, the trial court instructed the jury that the state had charged the defendant with assault in the first degree and had alleged that, acting with the intent to cause serious physical injury, the defendant fractured several of Hazard's facial bones by punching her repeatedly with his fists, which, under the circumstances in which they were used, as alleged by the state, constituted a dangerous instrument. The court then paraphrased the statutory definition of assault in the first degree under § 53a–59 (a)(1), stating, [a] person is guilty of assault in the first degree when, with intent to cause serious physical injury to another person, he causes such injury to such person by means of a dangerous instrument.” The court's specific instructions on “dangerous instrument” were as follows: ‘Dangerous instrument’ is defined by statute 7 as ‘any instrument, article, or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury.’ It is important to note that the article need not be inherently dangerous. All that is required is that the article was capable of causing death or serious physical injury under the circumstances in which it was used. Any article or substance, without limitation and even though harmless under normal use, may be found by you to be a dangerous instrument if, under the circumstances of its use or threatened or attempted use, it is readily capable of producing serious physical injury. A fist can be a dangerous instrument if you find that, under the circumstances of its use, it is readily capable of producing serious physical injury or death.”

I

The defendant claims that the trial court denied him his due process right to a properly instructed jury on the essential elements of assault in the first degree under § 53a–59 (a)(1). Specifically, he contends that the court improperly expanded the scope of liability under that section by instructing the jury that [a] fist can be a dangerous instrument....” The defendant claims that, due to this error, the jury improperly convicted the defendant of assault in the first degree on the basis of its erroneous belief that a fist could qualify as a dangerous instrument.

Both parties recognize that the question of whether a fist is a dangerous instrument under General Statutes § 53a–3 (7) is a matter of first impression in this state. The state urges us to follow the Appellate Court and interpret the word “instrument” in § 53a–3 (7)8 broadly as “a means whereby something is achieved, performed, or furthered.” (Internal quotation marks omitted.) State v. McColl, 74 Conn.App. 545, 554, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003), quoting Merriam–Webster's Collegiate Dictionary (10th Ed. 1993). The defendant, however, propounds a narrower definition that is limited to tools and implements that are external to, and separate and apart from, the perpetrator's body.9 We agree with the defendant.

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