State v. McColl

• Decision Date: 21 January 2003
• Docket Number: (AC 20624)
• Citation: 74 Conn. App. 545,813 A.2d 107
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. KEVIN J. MCCOLL

74 Conn. App. 545

813 A.2d 107

STATE OF CONNECTICUT v. KEVIN J. MCCOLL

(AC 20624)

Appellate Court of Connecticut.

Argued September 17, 2002.

Officially released January 21, 2003.

Mihalakos, Flynn and Dupont, Js. Kent Drager, senior assistant public defender, with whom, on the brief, were Stephen J. Sczurek and Sheri Jones, certified legal interns, for the appellant (defendant).

Marjorie Allen Dauster, assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Eva B. Lenczewski, senior assistant state's attorney, for the appellee (state).

Opinion

DUPONT, J.

The defendant, Kevin J. McColl, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), assault of a victim sixty years of age or older in the second degree in violation of General Statutes § 53a-60b (a), and two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3). On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction on the assault and robbery counts, (2) the court improperly instructed the jury on "feet and footwear" as a dangerous instrument, (3) the court improperly denied his motion to suppress his confession as the fruit of an illegal entry or as involuntary, (4) the court improperly instructed the jury on intent when the crimes charged were specific intent crimes and (5) the constitutional prohibition against double jeopardy was violated when he was sentenced on two counts of robbery. The jury reasonably could have found the following facts. The victims, Norman Lezotte, born August 18, 1927, and his wife, Patricia Lezotte, lived in the third floor apartment of a three-family house in Waterbury. On the evening of March 21, 1999, the two went to bed at around 11:30 p.m. At approximately 1:30 a.m. on March 22, 1999, a banging sound from the back of the house, which later proved to be the defendant kicking down the door, awakened them. Norman Lezotte proceeded from the bedroom into the kitchen where he noticed that the rear porch door was open.

Thereafter, the defendant lunged out, grabbing Norman Lezotte by the throat and choking him. Norman Lezotte elbowed the defendant in the stomach and threw two punches at the defendant's head. The defendant then grabbed Norman Lezotte in a chokehold and threw him to the ground. While Norman Lezotte was on the ground, the defendant, who was wearing sneakers, jumped, with two feet, onto Norman Lezotte's back and kicked him about a dozen times in the side and back, and twice in the head. In the course of jumping on and kicking Norman Lezotte with his shod feet, the defendant continually threatened: "If you move, I'll kill you," "If you get up, I'll kill you," and, "Give me the money." Norman Lezotte answered by telling the defendant that his wallet was on the counter with $11 and to take that. The defendant responded by kicking Norman Lezotte and threatening Patricia Lezotte, who by then was standing in the kitchen doorway. Norman Lezotte told his wife to get the money, and the defendant told her to get the money or he would kill her husband.

Patricia Lezotte, who had heard the defendant kicking her husband and saw the defendant with his foot on Norman Lezotte's back, pinning him down, then retrieved from the bedroom an envelope containing approximately $1900. The money was the couple's income tax refund, which had been put aside to pay various household expenses. Patricia Lezotte gave the money to the defendant. The defendant then demanded, "Give me the phone." Patricia Lezotte obeyed and gave the defendant the telephone. The defendant then demanded that Patricia Lezotte "open the door." She opened the screen door, which she noticed had a hole in it, and then, with the defendant pushing at her back, she opened the latches on a second door, which led down a stairway and out the back. The defendant then left.

After the defendant left, Norman Lezotte called the police from an apartment on the floor below. Initially, Norman Lezotte declined medical treatment, but later in the morning of March 22, 1999, went to the St. Mary's Hospital emergency room, complaining of pain in his back. His injuries consisted of severe bruising to the right side of his back, a bruise to his right ear, and multiple scratches on his back and neck.

On Friday, March 26, 1999, two detectives investigating the crimes at the Lezotte residence went to the home of the defendant and Tracy Fortier, which was next door to the victim's home. As the detectives approached the house, the defendant instructed Fortier to tell the police that the defendant was at home Sunday night into Monday morning, the time of the crimes. After the detectives left, Fortier, having just lied to them by stating that the defendant was home in the early morning of March 22, questioned him as to why he had instructed her to lie. The defendant responded that he had tried breaking into the Lezotte house to look for money to buy drugs. Upon further inquiry from Fortier, the defendant told her that he had not beaten Norman Lezotte, but only held him down.

On April 1, 1999, believing that the defendant had committed the crimes at the Lezotte residence, Fortier went to the police. Thereafter, Sergeant Eugene Coyle, Detective Nicholas Pesce and three uniformed officers proceeded to Fortier's and the defendant's home where they gained his consent to enter.¹ Once inside, Coyle read the defendant his Miranda² rights from a preprinted rights card³ and asked if he would give the police permission to search the house. The defendant indicated that he knew and understood his rights as they were explained to him. He initialed and signed a consent to search form. Thereafter, the defendant admitted that he was responsible for the burglary, but that he did not have the clothes he wore that night or the money that he stole. He did, however, show the officers the sneakers he was wearing at the time of the crimes.

After being in the home for ten to fifteen minutes, the detectives asked if the defendant would be willing to give a statement at the Waterbury police station. The defendant agreed and Coyle and Pesce transported him, uncuffed, to the station in an unmarked police vehicle. At the police station, the defendant turned over the sneakers, which he had brought from his home, and was placed in an interview room, where Coyle took his statement.⁴ Additional facts will be set forth as necessary.

I DANGEROUS INSTRUMENT CLAIMS

We first discuss the defendant's claims that there was insufficient evidence to support his conviction of assault of a victim sixty years of age or older in the second degree and of two counts of robbery in the first degree, and that the court's jury instructions as to his "feet and footwear" as a dangerous instrument were improper.⁵

The defendant did not file a request to charge the jury and did not object to the court's instructions about his "feet and footwear." He therefore seeks review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Because the record is adequate for review and the claim of improper jury instructions on an essential element of the crimes charged alleges the violation of a fundamental right, we conclude that the defendant's claim satisfies the first two prongs of Golding and is reviewable. See State v. Ash, 231 Conn. 484, 493, 651 A.2d 247 (1994). We will, therefore, consider whether the alleged constitutional violation clearly exists and, if so, whether it denied the defendant a fair trial. "[T]he standard of review to be applied to the defendant's constitutional claim is whether it is reasonably possible that the jury was misled. . . . In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.. . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict." (Internal quotation marks omitted.) State v. Amado, 254 Conn. 184, 194, 756 A.2d 274 (2000).

The defendant first argues that the court's instructions improperly allowed the jury to find that his foot alone, rather than his "feet and footwear" in combination, was a dangerous instrument. He contends that this was error because as a matter of law, a foot or other body part cannot be considered a dangerous instrument. The state contends that the information, the evidence presented, the arguments by counsel, and the jury instructions all made it clear that the jury was to consider whether the "feet and footwear" in the manner used were a dangerous instrument.

The court instructed the jury on the use and definition of a dangerous instrument within the context of the facts of this case three separate times, in connection with counts two, three and four of the information.⁶ The court read the information verbatim as to each count. The information, a copy of which the jury had, charged the defendant with the use of "a dangerous instrument, to wit: his feet and footwear. . . ." Additionally, in its instructions, the court told the jury that the state had alleged that the defendant's "feet and footwear" comprised the dangerous instrument.

On one occasion the court used the disjunctive, "feet or footwear," rather than the conjunctive, "feet and footwear." There was no dispute that the defendant was wearing...