State v. Nicholson

• Decision Date: 24 February 2015
• Docket Number: No. 36021.,36021.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Cargil A. NICHOLSON.

155 Conn.App. 499

109 A.3d 1010

STATE of Connecticut

v.Cargil A. NICHOLSON.

No. 36021.

Appellate Court of Connecticut.

Argued Nov. 14, 2014.

Decided Feb. 24, 2015.

Robert E. Byron, assigned counsel, for the appellant (defendant).

Linda Currie–Zeffiro, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and C. Robert Satti, supervisory assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and PRESCOTT and MULLINS, Js.

Opinion

MULLINS, J.

The defendant, Cargil A. Nicholson, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a–55. The defendant claims that (1) the state failed to present sufficient evidence to disprove his defense of premises justification defense beyond a reasonable doubt, and (2) the prosecutor engaged in impropriety during closing argument by resorting to conjecture and asserting facts that were not based on the evidence, and by making false statements to the jury concerning the law. We affirm the judgment of the trial court.

On the basis of the evidence presented, the jury reasonably could have found the following facts. On March 13, 2012, at approximately 6 p.m., the victim, James Cleary, was dropped off in front of his apartment building by Michael Vena and Vincent Falkner, with whom he had worked cutting down a tree that day. The victim carried his two chain saws with him into the apartment. Vena then drove around to the back of the apartment building, where he and Faulkner put the victim's climbing gear and ropes into the victim's van. The victim greeted his wife and put down his chain saws. The music from the apartment upstairs was quite loud, and the victim's wife complained to him.¹ The victim proceeded to go upstairs, and his wife followed behind him.

The victim's wife remained down the hallway while the victim knocked on the defendant's door, and the door opened. The victim started yelling at the defendant to turn down the music. The victim was approximately fifty years old, weighed approximately 156 pounds, and was five feet, nine inches tall. The defendant, who was approximately five feet, seven inches to five feet, eight inches tall, and weighed approximately 175 pounds, then punched the victim in the face. The victim hit him back. The defendant then pulled the victim into the apartment and a scuffle ensued, which was heard by the victim's wife, who had remained down the hallway. The defendant called the victim “the f-ing white devil.” The defendant then repeatedly hit the victim with an umbrella.

The defendant's live-in girlfriend, Tracy Wright, had been in the bathroom washing her hair when the scuffle first ensued. Upon exiting the bathroom, Wright saw the defendant and the victim fighting. Wright tried to get between the victim and the defendant to stop the fight, but the victim pushed her back. The defendant then grabbed a stool with both hands and hit the victim in the back with it at least once, but may have hit him as many as four times. The force of the blow to the back was “pretty hard,” hard enough that the victim would “feel the pain.” Wright told the defendant to put down the stool, thinking that the defendant could hurt or kill the victim with the stool, and the defendant complied.

Wright then grabbed the victim by the arm, and, while standing beside him, opened the door, and the victim went out into the hallway, proceeding sideways through the doorway. Although Wright did not notice any blood or witness the victim being stabbed, the defendant, after putting down the stool, had picked up a knife from the counter and had stabbed the victim in the back, either before or shortly after Wright had grabbed the victim by the arm. The stab wound

in the victim's back was seven and one-quarter inches deep. After getting the victim out of the apartment, Wright called 911, telling the dispatcher that she had pushed the victim out the door. The defendant washed off the knife before the police arrived.

The altercation inside the apartment took only seconds, and when the victim staggered out of the defendant's apartment, he told his wife that the defendant had stabbed him in the back. The victim's shirt was pulled up, his woolen cap had been pulled off, and he was bleeding from his back. Panic stricken, the victim's wife ran downstairs, where she grabbed her purse so that she could take the victim to the hospital. She then went into the hallway looking for the victim. When she could not find him in the hallway, she went outside to the front of the house, where she saw the victim fall to his knees. The victim then told his wife that he thought he was dying. The victim's wife realized that she did not have her car keys, so she returned to the apartment to get them.

Meanwhile, Vena, who had dropped the victim off at the front of the house only five to ten minutes earlier, had finished putting away the victim's gear and was leaving the property when he saw the victim lying on the steps. Vena saw blood and immediately told Faulkner to get out of the truck and to help the victim, which he did. The victim then “stumbled” into the backseat of the truck, and Faulkner jumped into the front passenger's seat. The victim told Vena, “He stabbed me.” Vena then called 911 and drove to the Main Street intersection, where he waited for the ambulance to arrive. The victim died as a result of the stab wound

.

The defendant was arrested and charged with murder in violation of General Statutes § 53a–54a (a). He raised defense of premises as a justification defense, and the court instructed the jury on this defense and on lesser included offenses of murder. Following a not guilty verdict on the charge of murder, the defendant was convicted of the lesser included offense of manslaughter in the first degree. This appeal followed.

I

The defendant claims that the state failed to present sufficient evidence to disprove his defense of premises justification defense beyond a reasonable doubt. He argues that he produced evidence that the victim was a trespasser and an aggressor in this situation. The defendant argues that, in accordance with General Statutes § 53a–20 (2),² he produced evidence that he “reasonably believ[ed] that deadly force was necessary to prevent an attempt by the trespasser to commit ... any crime of violence.” (Internal quotation marks omitted.) Additionally, the defendant argues that he produced evidence that he reasonably believed that the victim “would continue to attack him and inflict great bodily harm.” (Internal quotation marks omitted.) Accordingly, he argues that, because he met his burden of production, the burden was on the state to disprove his justification defense, which it then failed to do. We are not persuaded that the state failed to meet its burden to disprove beyond a reasonable doubt that the defendant's use of deadly physical force was justified.

“On appeal, the standard for reviewing sufficiency claims in conjunction with a justification offered by the defense is the same standard used when examining claims of insufficiency of the evidence.... In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.... Moreover, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty....

“The rules governing the respective burdens borne by the defendant and the state on the justification of self-defense [and defense of premises] are grounded in the fact that [u]nder our Penal Code, self-defense, as defined in [General Statutes] § 53a–19 (a) [and defense of premises as defined in § 53a–20 are] ... defense[s], rather than ... affirmative defense [s]. See General Statutes § 53a–16.³ Whereas an affirmative defense requires the defendant to establish his claim by a preponderance of the evidence, a properly raised defense places the burden on the state to disprove the defendant's claim beyond a reasonable doubt. See General Statutes § 53a–12. Consequently, a defendant has no burden of persuasion for a claim of self-defense [or defense of premises]; he has only a burden of production. That is, he merely is required to introduce sufficient evidence to warrant presenting his claim ... to the jury.... Once the defendant has done so, it becomes the state's burden to disprove the defense beyond a reasonable doubt.” (Citations omitted; emphasis omitted; footnote added; internal quotation marks omitted.) State v. Revels, 313 Conn. 762, 778–79, 99 A.3d 1130 (2014) ; see also State v. Terwilliger, 294 Conn. 399, 408, 984 A.2d 721 (2009) (defendant bears initial burden of producing sufficient evidence to raise issue of defense of premises).

“Whether the defense of the justified use of force, properly raised at trial, has been disproved by the state is a question of fact for the jury, to be determined from all the evidence in the case and the reasonable inferences drawn from that evidence.... As long as the evidence presented at trial was sufficient to allow the jury reasonably to conclude that the state had met its burden of persuasion, the verdict will be sustained.” (Internal quotation marks omitted.) State v. Johnson, 71 Conn.App. 272, 280, 801 A.2d 890, cert. denied, 261 Conn. 939, 808 A.2d 1133 (2002), cert. denied, 537 U.S. 1207, 123 S.Ct. 1286, 154 L.Ed.2d 1052 (2003).

In order to determine whether the state produced sufficient...