State v. Osbourne

• Decision Date: 16 October 2012
• Docket Number: No. 32553.,32553.
• Citation: 138 Conn.App. 518,53 A.3d 284
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Lorenzo OSBOURNE.

138 Conn.App. 518

53 A.3d 284

STATE of Connecticut

v.Lorenzo OSBOURNE.

No. 32553.

Appellate Court of Connecticut.

Argued April 9, 2012.

Decided Oct. 16, 2012.

Jennifer Bourn, assistant public defender, for the appellant (defendant).

Linda Currie–Zeffiro, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Pamela J. Esposito, senior assistant state's attorney, for the appellee (state).

LAVINE, BEAR and SHELDON, Js.

SHELDON, J.

The defendant, Lorenzo Osbourne, appeals from the judgment of conviction rendered against him following a jury trial of three counts of attempt to commit assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2), 53a–59 (a)(1) and 53–202k and one count of interfering with an officer in violation of General Statutes § 53a–167a. ¹ On appeal, the defendant claims that (1) there was insufficient evidence to sustain his conviction of three counts of attempt to commit assault in the first degree because the state failed to prove the essential elements of that offense beyond a reasonable doubt as to any of his alleged victims, three Bridgeport police officers; (2) the court erred in denying the jury's request to replay the video of the events here at issue, as recorded by the camera on the Taser gun of one of the officers, in the privacy of the deliberating room; and (3) the court erred in failing to instruct the jury on the intent element of the offense of interfering with an officer. We affirm the judgment of the trial court.

Based upon the testimony of the state's witnesses, the jury was presented with the following evidence upon which to base its verdict. On August 29, 2009, at approximately 4:30 p.m., two uniformed Bridgeport police officers, Jorge Larregui and Carlos Vasquez, responded to a burglar alarm call at a church located at the corner of Logan Street and Stratford Avenue in Bridgeport. As the officers drove toward the church in their marked police cruiser, they observed the defendant and another man standing on the corner near the church. While the officers were speaking to people in the church parking lot about the burglar alarm, they observed the defendant and the other man walk past them and enter an adjacent lot on which there was an abandoned building. Upon determining that the burglary call was a false alarm, the officers returned to their vehicle and resumed patrolling the area.

As they continued their patrol, the officers made further observations of the defendant and his companion. After several minutes, because the area was known for its high level of drug activity and the defendant and his companion had emerged from the empty lot, the officers determinedthat the men were suspicious and decided to investigate them. To that end, they stopped their cruiser approximately ten to twenty feet in front of the men and got out to approach them. When this occurred, the defendant and the other man immediately began to flee, prompting Vasquez to grab the defendant, who physically resisted and threw punches at him, and Larregui to detain the other man, who struggled with him until he drew his Taser gun and threatened to use it if the man continued to resist. When the Taser gun was turned on, its camera began to record the encounter as it unfolded. Officer Damien Csech, another uniformed Bridgeport police officer, then arrived at the scene and took control of the man with whom Larregui had been struggling, freeing Larregui to assist Vasquez in his efforts to subdue the defendant. After Csech handcuffed the other man and searched him for weapons, he too turned his attention to the defendant.

Vasquez responded to the defendant's initial efforts to resist him by putting him in a choke hold and repeatedly ordering him to get down on the ground. Although Vasquez succeeded in getting the defendant down onto his hands and knees, the defendant continued to struggle with him and to defy his repeated orders to lie down on the ground. In the course of such continuing resistance, while both Vasquez and Csech were attempting to restrain the defendant physically, Larregui tased the defendant in the back, causing him to holler out in pain.

The officers testified, without objection, as to the operation and effects of a Taser gun. They explained that, when a Taser is deployed, it fires two prongs at the targeted person, which stay connected to the Taser gun by conductive wire. When the Taser is activated and the target is receiving an electrical shock from it, a loud, steady ticking sound can be heard. That ticking sound continues for the duration of each tasing cycle, which lasts approximately five seconds. Generally speaking, the shock from the Taser completely incapacitates the target for the duration of the cycle. At the end of the cycle, however, the target's normal functioning is immediately restored.

After the first five second tasing cycle, when the defendant continued to struggle with Vasquez, Larregui tased him again. Immediately after that second cycle ended, the defendant quickly reached down to his right shorts pocket, from which he grabbed and partially removed a gun. Upon spotting the gun, which he first became aware of at that point, Vasquez immediately stepped in between the defendant's right side and right arm, preventing the defendant from reaching downward again. Moments later, Larregui tased the defendant a third time.

Notwithstanding Vasquez' position between the defendant's right side and right arm from the time the gun first appeared until the initiation of the third tasing cycle, the officers testified that the defendant held the gun in his right hand during this third cycle until it fell to the ground and discharged. After the gun fell, Larregui testified that he kicked it out of the defendant's reach. Thereafter, as the defendant continued to struggle, Larregui tased him twice more before he was finally placed in handcuffs.

The state also presented testimony from Marshall Robinson, a firearms examiner for the Bridgeport police department. Robinson testified, based upon his examination of the gun, that it was a five shot, .32 caliber revolver which, despite having a broken trigger return spring, was operable in either single action or double action mode. The hammer of the gun, which had to be cocked in order to be fired in either mode, could be cocked in two ways, either by pulling back the hammer manually or by pulling the trigger. Although the hammer was cocked when Robinson received the gun for examination, he could not say how or when it had been cocked. Even so, he opined that the hammer had not likely been cocked by accident. When Robinson was given the gun to examine, he was also given four live cartridges and one cartridge case from which a round had been discharged.

At the end of trial, the defendant was found guilty of three counts of attempt to commit assault in the first degree and one count each of carrying a pistol without a permit, criminal possession of a firearm, reckless endangerment in the first degree and interfering with an officer. The court sentenced the defendant on these charges to a total effective sentence of fifteen years incarceration, execution suspended after ten years, and three years probation, broken down as follows: on the three counts of attempt to commit assault in the first degree, concurrent terms of fifteen years incarceration, execution suspended after ten years, and three years probation; ² on the count of criminal possession of a firearm, a concurrent term of two years incarceration; and on the three separate counts of carrying a pistol without a permit, reckless endangerment in the first degree and interfering with an officer, concurrent terms of one year incarceration. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to sustain his conviction of three counts of attempt to commit assault in the first degree because the state failed to prove the essential elements of that offense beyond a reasonable doubt as to any of his victims. We disagree.

“The standard of review [that] we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt ... because this court has held that a jury's factual inferences that support a guilty verdict need only be reasonable....

“[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt ... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal.... On appeal, 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.... Furthermore,[i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is...