State v. Palmer, 3125

• Decision Date: 12 August 1986
• Docket Number: No. 3125,3125
• Citation: 8 Conn.App. 496,513 A.2d 738
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Edward PALMER.

Page 738

513 A.2d 738

8 Conn.App. 496

STATE of Connecticut v. Edward PALMER.

No. 3125.

Appellate Court of Connecticut.

Argued May 8, 1986.

Decided Aug. 12, 1986.

John R. Williams, New Haven, for appellant (defendant).

Frank S. Maco, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (state).

Before BORDEN, SPALLONE and BIELUCH, JJ.

BIELUCH, Judge.

The defendant has appealed from the judgment rendered after his conviction by a jury of two counts of attempted murder in violation of General Statutes §§ 53a-54a(a) and 53a-49. He claims as error (1) the trial court's denial of his motion for acquittal based on the sufficiency of the evidence, and (2) its refusal to instruct the jury concerning lesser included offenses.

The jury could reasonably have found the following facts. On December 20, 1980, Detective Robert Kwet and Officer Kathy Sheehan, then Kathy Kwet, police officers of the city of Bridgeport and formerly husband and wife, were assigned to a special rape decoy detail. The special operation was designed to lure an unknown male, termed the "bumper rapist," who was sexually assaulting lone women whose cars were rammed from behind by him when they were stopped at stop signs. After they exited their vehicles in response to the intentional collision caused by him, they became his prey.

Sheehan drove her personal car while Kwet was positioned in the back seat out of view. Shortly after midnight, Sheehan noticed that she was being followed by a car. After she stopped at a stop sign, the vehicle that was following her struck the back of her car. Sheehan stated to Kwet, "This must be him." At about that time, her car was bumped again. She then left the car holding her service weapon in her right hand behind her and concealed by a coat. Kwet was lying prone on the rear seat out of sight. The driver of the second car, a male, having left his car at the same time, approached her. When they were eight to ten feet apart, Sheehan saw that the individual was raising a revolver and pointing it at her. When Sheehan saw this, she felt that she was in immediate danger of her life. She and the man then fired at each other almost simultaneously. After firing her weapon once, Sheehan thought she had been hit. She noticed a hole in her car about six inches away from her leg, and then jumped back into the front seat of her car when she heard an exchange of gunfire between Kwet and the attacker. Kwet yelled to her to get down because they were still being fired upon.

From his position in the back seat, Kwet observed the man coming at the car. Kwet then fired through the back window. The attacker retreated, but shots then rang out from in back of Sheehan's car. When Kwet was being fired upon, his head and shoulders were visible through the rear window. After receiving gunfire from the rear of Sheehan's car, Kwet smashed the rear window and saw the attacker, first, on the left side of his own car by the fender, and then in the car, bobbing his head up and down near the dashboard three or four times. The attacker then fled in his car and the police lost him.

Sheehan described the individual who struck her car as being 5'9" or 5'10"' inches tall, of medium build, dressed in dark clothing and wearing a ski hat pulled down over his face. Kwet described the man as having his face covered with a knit cap. He stated that two shots were fired by the assailant at his wife and two shots were fired at him. Kwet noticed ricochet marks on Sheehan's vehicle which resulted from the assailant's gunfire.

Subsequently, a bullet was discovered in Sheehan's car. This was established as having been fired from a weapon that was proved to be in the possession of the defendant at the time of the incident. The defendant was identified as the person who stole the revolver in Bridgeport on November 28, 1980. The weapon was later found in the defendant's possession when he was arrested during a burglary at the Superior Court in Bridgeport almost three months after the shooting.

We find no merit to the defendant's claim of error that there was insufficient evidence to convict him of two counts of attempted murder beyond a reasonable doubt. The jury, in finding the defendant guilty, reasonably found that the defendant stole a revolver, that a person similar in height and build to the defendant fired that same revolver approximately three weeks later during the shoot-out with Kwet and Sheehan, and that the defendant was still in possession of the weapon almost three months after the shooting when he was apprehended in the course of a burglary at the courthouse. "[I]n a criminal prosecution, the state has the burden of proving the case set forth in the information in all its material parts beyond a reasonable doubt, so that the court must find, in order to convict, that all the elements of the crime charged have been established beyond a reasonable doubt." State v. Johnson, 162 Conn. 215, 231, 292 A.2d 903 (1972); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); State v. Gallivan, 75 Conn. 326, 329, 53 A. 731 (1902). "In determining whether the evidence is sufficient to sustain a verdict, 'the issue is whether the jury could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.' " State v. Giguere, 184 Conn. 400, 402-403, 439 A.2d 1040 (1981), quoting State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). In ruling on such a motion, it is well settled that the evidence presented at the trial must be given a construction most favorable to sustaining the jury's verdict. State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978). The evidence in this case, both direct and circumstantial, reviewed in accordance with the above principles, fully supports the guilty verdicts of the jury.

We also conclude that the court did not err in refusing to instruct the jury on lesser included offenses. The defendant requested in writing that the trial court instruct the jury on the lesser included offenses of reckless endangerment in the first degree; General Statutes § 53a-63; and threatening; General Statutes § 53a-62. The court declined to do so.

"A defendant is entitled to an instruction on a lesser included offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) the evidence, introduced by either the state or the defendant, or by a combination of their proofs, justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." State v. Tinsley, 181 Conn. 388, 396-97, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981); State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Our concern here lies with the second criterion of this lesser included offense test.

The first count of the information upon which the defendant was tried in this case states, in pertinent part, that the defendant "with intent to cause the death of one Kathy Kwet, did shoot at and attempt to cause the death of said Kathy Kwet." This count sets forth the statutory elements of the attempted murder of Kathy Kwet. The second count alleges the same elements of the crime of the attempted murder of Robert Kwet. Reckless endangerment in the first degree, as defined in General Statutes § 53a-63, states that "[a] person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person." Under General Statutes § 53a-3(4), serious physical injury is defined as "physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ."

A precise parallel to the case before us exists in the penal laws and judicial authority of New York. ¹ Under New York Penal Law § 125.25, "[a] person is guilty of murder in the second degree when: (1) With intent to cause the death of another person, he causes the death of such person or of a third person...." This is the same definition of murder as exists in our penal code and as alleged in the two counts of attempted murder of which the defendant was convicted. New York Penal Law § 120.25 creates the crime of reckless endangerment in the first degree in these terms: "A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person." This definition of reckless endangerment in the first degree, while basically similar to that crime in our jurisdiction, is more confining objectively since it adds the element of "depraved indifference to human life" and does not reach below the creation of "a grave risk of death" to "a risk of serious physical injury." Under General Statutes § 53a-63, however, reckless endangerment in the first degree also exists when reckless conduct creates a risk of "serious physical injury to another person" which is also defined in General Statutes § 53a-3(4) as "serious disfigurement, serious impairment of health or serious loss of impairment of the function of any bodily organ."

The lesser included offense doctrine exists in our jurisdiction by judicial decision. State v. Tinsley, supra; State...