State v. Morgan

• Decision Date: 30 November 2004
• Docket Number: No. 23615.,23615.
• Citation: 86 Conn.App. 196,860 A.2d 1239
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Lloyd George MORGAN, Jr.

860 A.2d 1239

86 Conn.App. 196

STATE of Connecticut v. Lloyd George MORGAN, Jr.

No. 23615.

Appellate Court of Connecticut.

Argued September 15, 2004.

Decided November 30, 2004.

Pamela S. Nagy, special public defender, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Thomas R. Garcia, assistant state's attorney, for the appellee (state).

DRANGINIS, DiPENTIMA and McLACHLAN, Js.

DRANGINIS, J.

The defendant, Lloyd George Morgan, Jr., appeals from the judgment of conviction, rendered after a trial to the jury, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59(a)(1) and 53a-49(a)(2), attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59(a)(2) and 53a-49(a)(2), and possession of a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a. On appeal, the defendant has raised three types of claims: (1) the jury charge was improper, (2) the court improperly refused to conduct an in camera review of the victim's medical and psychological records, and (3) the defendant's conviction of two charges of attempt to commit assault in the first degree violated the constitutional protection against double jeopardy. Because we conclude that it is reasonably possible that a portion of the jury charge on self-defense was misleading, we affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant and the victim, Earl Gladding, were incarcerated at the MacDougall-Walker Reception/Special Management Unit correctional center. The defendant was a large man who had numerous felony convictions and, at the time, was serving a fourteen year sentence for selling narcotics. The victim was a small, muscular man who was serving a forty-six year sentence for felony murder. The victim's family had abandoned him and provided him with no financial or emotional support. The defendant and the victim met, developed a romantic relationship and became cell mates. The defendant provided the victim with financial and emotional support. They exchanged love letters.

The victim was the jailhouse tailor and handyman. He tailored clothes and repaired appliances for inmates in return for money. He used blades he removed from disposable razors to take apart clothing and unraveled cloth to obtain thread. He improvised needles from paper clips and wire. The defendant was interested in law and assisted inmates with their legal matters. He helped the victim file a petition for a writ of habeas corpus and learned the details of the victim's crime. The defendant was under the impression that the victim had killed his codefendant's mother with his bare hands and expressed no remorse for having done so. The victim claimed that his codefendant committed the murder. Despite the difference in their statures, the defendant claimed to be fearful of the victim because he had killed a woman.

The relationship between the two men was troubled in March, 2001. The defendant claimed to have been alarmed by what he saw as the victim's emotional out-bursts, stealing and physical abuse. He decided to request a transfer and to become Lawrence Kapel's cell mate. The defendant claimed that the victim was jealous of his relationship with Kapel, and when he told the victim that he was moving, the victim stated, "You ain't going nowhere." In a letter, the victim told the defendant that he never wanted the defendant to leave. According to the victim, however, the defendant was jealous of his relationships with other inmates and became concerned whenever the victim went to the cells of other inmates or spent time with them. The victim testified that on the night of March 29, 2001, he was angry with the defendant, not because the defendant wanted to transfer to Kapel's cell, but because of the defendant's jealousy. The victim testified that the defendant was upset because the victim had done some tailoring for another inmate that day. The two men argued but did not resolve their differences. The victim went to bed in the upper bunk. The two had different versions of what happened next.

The defendant testified that he injured the victim during an act of self-defense. According to the defendant, he was in the lower bunk when the victim reached down with a razor in his hand and said, "You know I keep my razor." After the defendant used the toilet, the victim asked him if he was still planning to move. The defendant replied in the affirmative. The victim became verbally abusive and threatening. He jumped down from the upper bunk, holding the razor and swinging a sock containing an electrical adaptor at the defendant. The defendant was able to take the sock away from the victim, who then attempted to cut him with the razor. The defendant swung the sock at the victim and hit him several times. When the victim dropped the razor, the defendant made a "code blue" call to officers, indicating that there had been a fight between inmates.

The victim testified, however, that he was angry because the argument regarding the defendant's jealousy was unresolved. He refused the defendant's request for sexual favors and went to sleep. Sometime later, the defendant pulled the blanket from him and again requested sexual favors, which the victim refused again. At approximately 1:15 a.m., the defendant armed himself with a razor and a sock containing an electrical adapter. He pulled the covers from the victim and threw a cup of boiling water at his face. He then slashed the victim's face with the razor and hit him with the sock and adapter. After the victim asked for mercy, the defendant ceased his attack and made the "code blue" call to officers.

When the officers arrived, the defendant exited the cell with his hands raised. The victim was sitting on the floor, bleeding profusely. He was taken to a hospital, where he was treated for cuts to his face, consistent with those caused by a razor blade. He also had a laceration on the back of his head from the contrived mace. Department of correction (department) officials testified that the defendant was charged at the behest of the victim, not department officials. At trial, the victim admitted that he wanted to sue the department for failing to protect him from the defendant and that he needed money to retain an attorney to overturn his murder conviction. He thought that he could obtain the money he needed by means of a lawsuit against the department.

After considering the evidence, the jury found the defendant guilty on all counts. On July 23, 2002, the court gave the defendant an effective sentence of ten years in the custody of the commissioner of correction, consecutive to the sentence he then was serving.

I

The primary focus of the defendant's appeal is on his claims that the jury was misled by the court's instructions on self-defense. More particularly, the defendant claims that the court improperly instructed the jury by (1) failing to charge on the legal consequence if the jury found that the state had failed to disprove his claim of self-defense, (2) failing to charge that the defense of self-defense applied to the charges of attempt to commit assault in the first degree, (3) misstating the subjective-objective test under General Statutes § 53a-19(a) and (4) failing to charge that the jury could consider his knowledge of the victim's character when applying the subjective-objective test. We agree that it is reasonably possible that the jury was misled by the court's failure to charge that self-defense was applicable to the charges of attempt to commit assault in the first degree and that self-defense was a complete defense to those charges. We therefore reverse the judgment of conviction on the two charges of attempt to commit assault in the first degree.

"The standard of review for claims of instructional impropriety is well established. [I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge.... The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict ... and not critically dissected in a microscopic search for possible error.... Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury." (Citations omitted; internal quotation marks omitted.) State v. Coltherst, 263 Conn. 478, 490, 820 A.2d 1024 (2003).

A

We will address together the defendant's first two claims regarding the court's jury instruction on self-defense. The defendant claims that the court failed to charge the jury that the state's failure to disprove self-defense was a complete defense to all of the charges against him. We disagree with the defendant's claim as it relates to his conviction for possession of a dangerous weapon or instrument in a correctional institution, but agree with the claim as it relates to his conviction of two counts of attempt to commit assault in the first degree.

"Due process requires that a defendant charged with a crime must be afforded the opportunity to establish a defense.... This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified." (Internal quotation marks omitted.) State v. Montanez, 71 Conn.App. 246, 252, 801 A.2d 868, cert. denied, 261 Conn. 935, 806...