State v. Nash

• Decision Date: 05 May 2015
• Docket Number: No. 19265.,19265.
• Citation: 316 Conn. 651,114 A.3d 128
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Kevin NASH.

316 Conn. 651

114 A.3d 128

STATE of Connecticut

v.Kevin NASH.

No. 19265.

Supreme Court of Connecticut.

Argued Oct. 22, 2014.

Decided May 5, 2015.

Mark Rademacher, assistant public defender, with whom, on the brief, was Heather Wood, former assistant public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anthony J. Spinella, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

Opinion

PALMER, J.

After the defendant, Kevin Nash, learned that Tyrell Knott (Tyrell) had been spreading rumors about him, the defendant retaliated by firing several shots into the second story of Tyrell's East Hartford home. One of the shots struck Tyrell's sister, Tyrikah Knott (Tyrikah), seriously injuring her. Thereafter, a jury found the defendant guilty of, inter alia, intentional assault in the first degree in violation of General Statutes § 53a–59 (a)(1) and reckless assault in the first degree in violation of § 53a–59 (a)(3) in connection with that shooting.¹ On appeal to this court,² the defendant claims that (1) his convictions of intentional and reckless assault in the first degree, which were based on the same conduct, are legally inconsistent and therefore cannot stand, and (2) the evidence was insufficient to support his conviction of intentional assault in the first degree. We disagree with both claims and, accordingly, affirm the judgment of the trial court.

The record reveals the following facts that the jury reasonably could have found. In or around 2005, Tyrell met Duane Brown while they were in high school together, and the two young men, both of whom are of Jamaican descent, became close friends. Brown spent a considerable amount of time at Tyrell's home, where Tyrell resided with his mother, stepfather and three sisters. At some point in the spring of 2008, Brown moved in with the defendant and the defendant's wife, and Brown and the defendant, who is also of Jamaican descent, began spending a lot of time together. Because Tyrell and the defendant did not get along well, Brown and Tyrell saw less of each other. At some point, Brown and the defendant learned that Tyrell was spreading a rumor that Brown and the defendant were in a homosexual relationship. On July 6, 2008, Brown called Tyrell and left him an angry voice mail message in which he berated Tyrell for spreading this rumor.³

On the evening of July 10, 2008, the defendant asked Brown to show him where Tyrell lived. The defendant, who also was angry about the rumor, told Brown that they needed to “teach [Tyrell] a lesson.” Brown obliged, and the two men drove to the Knotts' house. Once there, they walked into the backyard to survey the premises. After returning home, the defendant retrieved a handgun from his bedroom and told Brown that they had to go back to the house and “shoot it up” to “give [Tyrell] a warning.” Brown agreed and drove the defendant back to the house. When they arrived, Brown waited in the car while the defendant walked to the backyard and, from there, fired four or five shots into the second story of the Knotts' three story house.

At the time of the shooting, two of Tyrell's sisters, Tyrikah and S,⁴ were in S's second floor bedroom. One of the bullets penetrated through the bedroom wall and struck Tyrikah in the left buttock. Tyrikah was transported by ambulance to the hospital, where she was treated for the gunshot wound

and released. After leaving the hospital, Tyrikah and her family provided the East Hartford police with information about the shooting. At that time, Tyrell told the police about the angry voice mail message that he had received from Brown a few days before the shooting.

That same day, several East Hartford police officers visited Brown at his apartment for the purpose of questioning him about his possible involvement in the shooting. After being permitted to enter the apartment, the police interviewed Brown and the defendant, who also was present at the time. Both men denied any knowledge of the shooting.⁵ Brown later accompanied the police to the station to give a written statement, in which he again denied knowledge of the shooting. A few days later, however, Brown gave the police a second written statement admitting his involvement in the crime and implicating the defendant as the shooter.

Thereafter, the defendant was arrested and charged with one count each of intentional assault in the first degree in violation of § 53a–59 (a)(1), reckless assault in the first degree in violation of § 53a–59 (a)(3), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a–59 (a)(1) and 53a–48, risk of injury to a child in violation of General Statutes (Supp.2008) § 53–21(a)(1), and carrying a pistol without a permit in violation of General Statutes (Rev. to 2007) § 29–35(a), and four counts of reckless endangerment in the first degree in violation of General Statutes § 53a–63 (a).⁶ Following a jury trial, the jury found the defendant not guilty of the conspiracy charge but guilty of all other charges. In addition, because the state sought to enhance the defendant's sentence pursuant to General Statutes § 53–202k ; see footnote 6 of this opinion; the jury also found that the defendant had used a firearm in the commission of the underlying felonies. The trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to a total effective sentence of sixteen years imprisonment.⁷

On appeal, the defendant claims that his convictions of both intentional and reckless assault in the first degree are legally inconsistent because they required mutually exclusive findings regarding his mental state at the time of the shooting. He further claims that the state failed to adduce evidence sufficient to support his conviction of intentional assault in the first degree because the evidence adduced at trial did not support a finding that he intended to cause serious physical injury to another person, as § 53a–59 (a)(1) requires.

We disagree with both claims and, accordingly, affirm the judgment of conviction.

I

The defendant first claims that his convictions of intentional and reckless assault in the first degree cannot stand because they are legally inconsistent. In support of this claim, the defendant relies primarily on State v. King, 216 Conn. 585, 592–95, 583 A.2d 896 (1990), in which this court concluded that the convictions of the defendant, Roy Anthony King, of attempted murder and reckless assault of the same victim were legally inconsistent because the jury verdict required a finding that King simultaneously possessed mutually exclusive mental states, that is, he intended to kill the victim and he recklessly created a risk of the victim's death. According to the defendant in the present case, his convictions of intentional and reckless assault must be reversed because, like the convictions in King, they, too, required the jury to find that he simultaneously acted intentionally and recklessly in causing Tyrikah's injury. The state argues that this case is distinguishable from King because, in contrast to King, the charges in this case required the jury to find that the defendant acted intentionally and recklessly with respect to different results. In particular, the state argues that, because a person may intend to seriously injure a person within the meaning of § 53a–59 (a)(1) while simultaneously recklessly creating a risk of that person's death within the meaning of § 53a–59 (a)(3), the defendant's convictions are not legally inconsistent. We agree with the state.⁸

The following legal principles guide our analysis of the defendant's claim. It is well established that factually inconsistent verdicts are permissible. “[When] the verdict could have been the result of compromise or mistake, we will not probe into the logic or reasoning of the jury's deliberations or open the door to interminable speculation.” (Internal quotation marks omitted.) State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). Thus, “claims of legal inconsistency between a conviction and an acquittal are not reviewable [on appeal].” State v. Arroyo, 292 Conn. 558, 586, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S.Ct. 1296, 175 L.Ed.2d 1086 (2010). “We employ a less limited approach, however, when we are confronted with an argument that [two convictions] are inconsistent as a matter of law or when the [convictions] are based on a legal impossibility.” State v. Hinton, supra, at 313, 630 A.2d 593. A claim of legally inconsistent convictions, also referred to as mutually exclusive convictions, arises when a conviction of one offense requires a finding that negates an essential element of another offense of which the defendant also has been convicted. State v. Arroyo, supra, at 584 n. 21, 973 A.2d 1254. “In response to such a claim, we look carefully to determine whether the existence of the essential elements for one offense negates the existence of [one or more] essential elements for another offense of which the defendant also stands convicted. If that is the case, the [convictions] are legally inconsistent and cannot withstand challenge.” State v. Hinton, supra, at 313, 630 A.2d 593. Whether two convictions are mutually exclusive presents a question of law, over which our review is plenary. See State v. McFarlane, 128 Conn.App. 730, 735–36, 17 A.3d 1131, cert. denied, 301 Conn. 931, 23 A.3d 725 (2011).

Because the defendant contends that his convictions of intentional and reckless assault are mutually exclusive under State v. King, supra, 216 Conn. at 585, 583 A.2d 896, we begin our analysis with an examination of that case. King, an inmate at the Bridgeport Community Correctional Center, was convicted of, inter alia, attempt to commit murder and reckless assault in the first degree after he set fire to a...