State v. Luster
| Decision Date | 15 August 2006 |
| Docket Number | No. 17268.,17268. |
| Citation | 279 Conn. 414,902 A.2d 636 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Arthur LUSTER, Jr. |
George G. Kouros, special public defender, with whom were Cyd O. Oppenheimer and, on the brief, Richard A. Reeve and Michael O. Sheehan, for the appellant (defendant).
John A. East III, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Roger Dobris, senior assistant state's attorney, for the appellee (state).
SULLIVAN, C.J., and BORDEN, PALMER, VERTEFEUILLE and ZARELLA, Js.*
The defendant, Arthur Luster, Jr., appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a. The defendant claims that the trial court, Thompson, J., improperly instructed the jury on flight as evidence of consciousness of guilt, and that the state engaged in prosecutorial misconduct during closing arguments, thereby depriving the defendant of his due process right to a fair trial. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. The victim, Kyell Sesler, became involved in a romantic relationship with the defendant's sister, Tenea Brown. As a result of their relationship, the victim got to know various members of Brown's family, including the defendant, who became his friend. Brown and the victim had a child together, but, by 2002, the couple's relationship had become rocky and Brown's family had become embroiled in their domestic disputes. On Friday, May 17, 2002, the victim arrived at Brown's house while the defendant was visiting her, and a heated verbal confrontation ensued between the victim and the defendant. The next day, a physical fight broke out between Troy Brown, the defendant's brother, and Breon Padgett, the victim's brother, at a shopping mall in downtown New Haven. That evening, the victim and his uncle, Rashad Bolden, drove to Tenea Brown's house looking for the defendant. After they had left, Tenea Brown related this incident to the defendant's other sister, Lanisha Brown, who called the defendant and warned him to stay out of the victim's way.
On Sunday, May 19, 2002, the defendant attended the fortieth annual Freddy Fixer parade in New Haven. The parade is an annual event that celebrates the city's African-American communities and culture. It begins at the Hamden town line and travels south on Dixwell Avenue to the New Haven green in front of city hall. The defendant drove to the parade with his brothers, Troy Brown and Antonine Brown, whom he dropped off before parking his car several streets away from the parade route. Before proceeding to the parade, the defendant removed a gun that was hidden in the trunk of his car and tucked it into his waistband.
The defendant met up with his brothers and a friend, Andrew Fain, and they walked south along Dixwell Avenue. The area was crowded with thousands of spectators. As they approached the intersection of Dixwell Avenue and Webster Street, the defendant and his companions encountered the victim, who was standing on the sidewalk with some friends and relatives. The victim suddenly and unexpectedly punched the defendant in the face, and a fistfight erupted between the defendant, the victim, and their companions.
The witnesses provided conflicting accounts of this fight. The defendant and his brothers testified that the victim and his friends were kicking and stomping on the defendant while he lay on the ground, trying to protect his head. Friends and relatives of the victim testified that he was on the ground being stomped and kicked. A single witness, Howard Reed, had no personal connection to either the defendant or the victim. He testified that the victim was being beaten for most of the fight, and that the victim got up and tried to run just before the defendant shot him. He acknowledged, however, that because these events had occurred well over one year prior to trial, he did not clearly remember the details of what had happened.
The fight lasted for a short period of time before the defendant pulled out his gun and fired two shots in quick succession at the victim. Ira Kanfer, the state's medical examiner, testified that the shots were fired at close range, and that one bullet entered the victim's side while the other entered his upper back. Although paramedics arrived on the scene shortly after the shooting, the victim died at the hospital that afternoon. The gunfire created pandemonium, and the crowd of spectators panicked and scattered. The defendant ran from the scene. He lost the gun as he traversed a nearby park on his way home.
The police arrived on the scene shortly after the shooting. The first officer to arrive concluded that the victim had been mortally wounded. He called an ambulance and attempted to secure the area around the victim, but he had trouble keeping the crime scene under control because of the number of people in the vicinity.
At this point in time, the parade had halted just a few blocks north of Webster Street. The chief of police, who was marching with the parade, instructed the officers at the scene to pick up all visible evidence and to mark its location on the pavement so the parade could proceed through the crime scene. After collecting evidence for approximately one-half hour, the police reopened the street to the parade, but they kept a small area where the victim had been found cordoned off with police tape. After the parade had passed through, detectives closed a larger section of the crime scene and performed a full investigation.
Detective Clarence Willoughby of the New Haven police department was assigned to the case. On Monday, May 20, 2002, Willoughby visited the defendant at his home. Willoughby did not notice any cuts or bruises on the defendant's face, even though the defendant claimed to have been in a violent fight. The defendant appeared to be upset, but he was courteous and cooperative. He agreed to accompany Willoughby to the police station, where he voluntarily gave a statement to the police. The defendant also helped the police search for the lost gun in the park. After an unsuccessful search for the weapon, Willoughby allowed the defendant to return home. Willoughby then applied for an arrest warrant and arrested the defendant at his home on May 22, 2002.
The defendant, who was charged with murder under General Statutes § 53a-54a, raised a claim of self-defense. Specifically, the defendant claimed that he feared the victim because he had carried a gun in the past, and because the defendant had heard that the victim was trying to obtain a gun in order to shoot him just days before the parade. In addition, the defendant recently had had several belligerent confrontations with the victim. Although the jury found the defendant not guilty of murder, it rejected his self-defense claim and found him guilty of the lesser included offense of intentional manslaughter in the first degree with a firearm under § 53a-55a. The defendant subsequently appealed from his conviction to this court pursuant to General Statutes § 51-199(b)(3).1 Additional relevant facts will be set forth as necessary.
The defendant first claims that the trial court improperly instructed the jury that the defendant's flight could be used as circumstantial evidence of consciousness of guilt. Although trial counsel did not object to this jury instruction, the defendant urges us to review his claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), which provides for appellate review of unpreserved constitutional errors if certain conditions are met.2 In the alternative, he asks this court to exercise its supervisory authority either to abandon the flight instruction or to modify it to make it "evenhanded." The state claims that the defendant has not raised a constitutional issue, and that we should not exercise our supervisory powers in the present case. We agree with the state.
At the outset, we set forth the standard of review. "The decision whether to give an instruction on flight, as well as the content of such an instruction, if given, should be left to the sound discretion of the trial court." State v. Hines, 243 Conn. 796, 816, 709 A.2d 522 (1998). (Citations omitted; internal quotation marks omitted.) State v. Alston, 272 Conn. 432, 447, 862 A.2d 817 (2005).
We now turn to the defendant's first claim that we should review the flight instruction in the present case under Golding. Specifically, the defendant argues that an instruction on flight is unconstitutional in the context of a self-defense claim because it allows the jury to presume guilt from the defendant's actions in fulfilling his legal duty to retreat, which dilutes the state's burden to disprove self-defense beyond a reasonable doubt. The state responds that this consciousness of guilt claim is not reviewable because it fails the second prong of Golding,...
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...general instruction cures the impropriety. See, e.g., State v. Jones, 320 Conn. 22, 38–39, 128 A.3d 431 (2015) ; State v. Luster , 279 Conn. 414, 446, 902 A.2d 636 (2006) ; State v. Warholic , 278 Conn. 354, 402, 897 A.2d 569 (2006) ; State v. Stevenson, 269 Conn. 563, 597–98, 849 A.2d 626 ......
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...the facts in evidence and the reasonable inferences to be drawn therefrom." (Internal quotation marks omitted.) State v. Luster , 279 Conn. 414, 428–29, 902 A.2d 636 (2006). A review of the record indicates that the remark at issue here was an attempt to have the jury draw an inference from......
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