State v. Shinn

• Decision Date: 30 December 1997
• Docket Number: No. 15928,15928
• Citation: 704 A.2d 816,47 Conn.App. 401
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jason SHINN.

Page 816

704 A.2d 816

47 Conn.App. 401

STATE of Connecticut v. Jason SHINN.

No. 15928.

Appellate Court of Connecticut.

Argued Oct. 1, 1997.

Decided Dec. 30, 1997.

Francis T. Mandanici, Assistant Public Defender, for appellant (defendant).

Mary H. Lesser, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Gary Nicholson, Assistant State's Attorney, for appellee (State).

Before FOTI, LAVERY and DUPONT, JJ.

DUPONT, Judge.

The defendant appeals from the judgments of conviction, rendered after a jury trial, of attempt to commit murder in violation of General Statutes §§ 53a-49 (a)(2) and 53a-54a, carrying a dangerous weapon without a permit in violation of General Statutes § 53-206(a), and threatening in violation of General Statutes § 53a-62. ¹ The defendant claims (1) that the trial court improperly denied his motions for judgment of acquittal concerning the attempt charge because there was insufficient evidence to sustain his conviction on that charge, (2) that the court improperly instructed the jury concerning the planning element of the attempt charge and the defense of intoxication, and (3) that the state's closing argument to the jury impermissibly burdened his constitutional rights to be present at his trial and to testify in his own behalf. We reverse the conviction of attempt to commit murder on the ground that the defendant's constitutional right to testify in his own behalf was impermissibly burdened ² and remand the case for a new trial.

The jury reasonably could have found the facts that follow. In November, 1994, the defendant lived in an apartment with his girlfriend, Lisa Listorti, her infant daughter and her mother. The defendant was then sixteen years old and had been living with Listorti for approximately three years.

On November 8, 1994, the defendant was at home with Listorti, drinking liquor and smoking crack cocaine and marijuana. The defendant had had two violent arguments with Listorti that day. Both times, the police were called and came to the apartment. During the second argument, the defendant became violent, hit Listorti, waved a knife in her face, and threatened to kill her.

When the police arrived after the second fight between the defendant and Listorti, the defendant ran out the backdoor of the apartment, taking a large kitchen knife. New Haven police officer Roderick McLane, who had responded to the domestic violence call, spoke with Listorti and went to the back of the apartment building where he saw the defendant on the fire escape. From there, the defendant went onto the roof of the building. McLane followed the defendant to the top of the fire escape and, at that point, saw that the defendant was holding a large kitchen knife in a threatening manner. The defendant told McLane, "Don't come up here, I'm going to kill you." At some point, the defendant also threatened to kill himself. McLane remained on the fire escape and called for back-up. In response to McLane's call, Officer John Magoveny arrived.

After some discussion between the officers and the defendant, the defendant agreed to talk to Magoveny, and the officer climbed onto the roof. McLane could not see the defendant or Magoveny or hear their conversation from his position on the fire escape. When Magoveny got onto the roof, he saw that the defendant was holding a large kitchen knife. As Magoveny continued to talk to the defendant, the defendant became agitated, began to growl and snarl, and raised the knife above his shoulders in a striking position. The defendant then threatened to kill Magoveny and began to walk quickly toward the officer, holding the knife in a striking position. Magoveny fired two shots from his gun at the defendant, hitting him in the hip and left arm. The defendant fell onto the roof. As Magoveny bent down to assist the defendant, the defendant continued to growl and attempted to thrust the knife at Magoveny. After a brief struggle, Magoveny fired a third shot into the defendant's chest. The defendant then dropped the knife onto the roof. Magoveny picked up the defendant and carried him to the edge of the roof where he was lowered to a waiting ambulance.

We first address the defendant's claim that there was insufficient evidence for the trial court to conclude that the defendant was guilty of attempt to commit murder. The defendant is entitled to a judgment of acquittal on this charge if he prevails on this claim. Specifically, the defendant claims that the state was required to prove that the defendant "planned" his conduct, and that the evidence was insufficient to prove the element of "planning." The relevant portion of the attempt statute in this case provides: "A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for the commission of the crime, he ... (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." General Statutes § 53a-49 (a). Relying on the words "planned" and "culminate" in the statute, the defendant claims that in order to convict him of attempted murder the state was required to demonstrate that, prior to his act of advancing toward Magoveny while holding the knife in a striking position, he had a plan to kill the officer. The defendant further claims that his intent to kill Magoveny could not have been adopted simultaneously with the actions that constituted the substantial step toward the murder. The defendant fails, however, to provide any case law or other authority for his contention that the attempt statute requires any such prior planning or premeditation.

There are many Connecticut cases defining the elements of an attempt charge, none of which indicates any requisite prior planning. See State v. Gonzalez, 222 Conn. 718, 725-26, 609 A.2d 1003 (1992); State v. Sharpe, 195 Conn. 651, 655, 491 A.2d 345 (1985); State v. Russell, 29 Conn.App. 59, 66, 612 A.2d 809, cert. denied, 224 Conn. 908, 615 A.2d 1049 (1992); State v. Taft, 25 Conn. App. 578, 582-83, 595 A.2d 918, cert. denied, 220 Conn. 921, 598 A.2d 144 (1991). The legislature has defined what it meant by a "substantial step" in § 53a-49 (a). It must be part of a course of conduct that is "planned to culminate in" the crime. The action taken must embody the intended crime, rather than being merely accidental or inadvertent. The "[c]onduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) unless it is strongly corroborative of the actor's criminal purpose." (Emphasis added.) General Statutes § 53a-49 (b). "[T]his standard properly directs attention to overt acts of the defendant which convincingly demonstrate a firm purpose to commit a crime." State v. Green, 194 Conn. 258, 276-77, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S.Ct. 964, 83 L.Ed.2d 969 (1985). Accordingly, the acts " 'must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the [defendant] at least to be possible of commission by the means adopted.' " State v. Taft, supra, at 582, 595 A.2d 918, quoting State v Mazzadra, 141 Conn. 731, 736, 109 A.2d 873 (1954).

In the only Connecticut case of which we are aware in which the possibility that there is an element of prior planning in the attempt statute is discussed; State v. Gonzalez, supra, 222 Conn. at 725-26, 609 A.2d 1003; it was held that the trial court had improperly assumed that some prior plan or premeditation was necessary for criminal liability under § 53a-49 (a)(2). In that case, the trial court had informed the jury that subsection (a)(2) of the attempt statute did not apply because there was no plan or lying in wait leading up to the encounter between the defendant and the victim. ³ State v. Gonzalez, supra, [47 Conn.App. 407] at 724-25, 609 A.2d 1003. Our Supreme Court stated that the only proof required for a conviction for attempted murder under § 53a-49 (a)(2) was that "the defendant was armed, that he knowingly and intentionally produced a gun during his altercation with the victim, and that he shot the victim with the intent to take the victim's life." Id., at 726, 609 A.2d 1003. The court further stated that "[i]t cannot seriously be argued that if the defendant shot the victim with the intent to cause his death, that the action taken, the shooting of the victim, was not a substantial step in a course of conduct planned, i.e., intended or designed, to culminate in the commission of the crime of murder...." (Emphasis added.) Id. Thus, the Gonzalez court clearly interpreted the "planning" language in the statute to refer to the conduct, not the ultimate crime, in that the conduct must be planned or intended to culminate in the crime. The only factual distinction between this case and Gonzalez relevant to the interpretation of the statutory language quoted is that the victim was actually shot in Gonzalez.

The jury in this case reasonably could have found that the defendant raised the knife in a menacing manner and aimed the knife toward Magoveny, and that the defendant's act of advancing toward Magoveny holding a large knife in such a manner and driving the knife toward Magoveny was a substantial step in a course of conduct that was planned to culminate in the murder of Magoveny. We conclude that there is no support in the language of the statute or in the case law interpreting it for the defendant's proposition that, for him to be guilty of attempt pursuant to § 53a-49, the state would have to prove that he planned to murder Magoveny prior to performing acts that constitute a substantial step toward the murder. We hold, therefore, that the evidence was sufficient to support the jury's conviction of the defendant of attempted murder. ⁴

We next address the defendant's claim...