State v. Smith, 21991.

CourtAppellate Court of Connecticut
Citation73 Conn.App. 173,807 A.2d 500
Decision Date22 October 2002
Docket NumberNo. 21991.,21991.
PartiesSTATE of Connecticut v. Scott SMITH.

John J. Kelly, Danbury, for the appellant (defendant).

John A. Connelly, state's attorney, with whom was Robin Lipsky, assistant state's attorney, for the appellee (state).

SCHALLER, J.

The defendant, Scott Smith, appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-551 and 53a-55a.2

On appeal, the defendant claims, inter alia, (1) that the evidence adduced at trial was insufficient to establish his guilt under § 53a-55a, (2) that, in excluding certain evidence, the court denied him his right to establish a defense under the United States and Connecticut constitutions, and (3) that the court improperly instructed the jury, thereby denying his constitutional rights. We conclude that in excluding certain evidence at trial, the court deprived the defendant of his right to present a defense. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.3

The jury reasonably could have found the following facts. On December 29, 1998, the defendant, a police officer with the New Milford police department, was working the 9 a.m. to 5 p.m. shift in the detective division assisting in drug investigations. At approximately 11 a.m., the defendant was at the police station when David Shortt, a detective with the New Milford police department, informed him that Robert Cramer, a sergeant with the New Milford police department, was in foot pursuit of the victim, Franklyn Reid. The defendant and Shortt left the police station in an unmarked vehicle and headed toward Cramer's location.

As the defendant and Shortt traveled along Route 202 in New Milford, they noticed a man walking on the side of the road. They turned their vehicle around at a nearby intersection and drove back to determine whether the man they had seen was the victim. The defendant saw the person walking in the parking lot of a gasoline station and approached in the vehicle to within ten to fifteen feet of him. The officers identified the person as the victim at that time.

The victim, who was wearing baggy clothes and carrying a light jacket or a sweatshirt, saw the officers approach. As the defendant opened the door to exit the vehicle, intending to catch and arrest the victim, the victim immediately started to run "very fast" toward Route 202. The defendant gave chase on foot, running very fast and following the victim through the parking lot and out into the street across traffic. The defendant yelled repeatedly, "Stop, police. Stop, police." After they crossed Route 202, the defendant chased the victim along the road, between the edge of the lane and the curb, until the victim suddenly turned left and ran onto a grassy area along the road. During the chase, the defendant continued to yell to the victim, "Stop, police." The grassy area led to an embankment. The area is near a house or a wooded area, and the defendant expected the victim to run into the wooded area. The victim did not run up the embankment; rather, the victim turned suddenly back to the right, toward the road and straight into traffic without looking. The defendant, who did not turn as quickly as the victim, ended up running past the victim. He observed the victim run into the street and stop at approximately the middle of the roadway.

The defendant observed the victim standing with his back to him; he could not see the victim's hands. At that time, the victim looked back at the defendant with what the defendant termed a "confrontational" or "thousand yard stare." Consistent with training that he had received as a police officer, the defendant perceived those looks, or cues, as indicative of a threat to his safety. The defendant drew his sidearm from the holster on his hip and pointed it at the victim, cradling the weapon with both hands. Immediately after drawing his weapon, the defendant began yelling to the victim, "Show me your hands, show me your hands," and he began to approach him. The defendant wanted to "get both of [them] out of the middle of the road. The last place [the defendant] wanted to take somebody into custody is in the middle of a busy street." The victim then raised his hands and surrendered.

Upon reaching the victim's location at the center of the road, the defendant took hold of the victim and attempted to move him to the side of the road to arrest and to handcuff him. To move the victim, the defendant changed the position he used to hold his weapon. Consistent with his training, the defendant held his weapon in his right hand, which he held close to the center of his body, while holding his empty left hand out straight to take hold of the victim. The purpose of that change in position was to maximize the distance between the weapon and the victim.

The defendant led the victim back to the same grassy area next to the road. Upon arriving at the grassy area, the victim initially lay down on his back and elbows with his feet pointed toward the road, and then lay on his stomach with his hands pointed straight over his head. The defendant straddled the victim, standing over him with his gun pointed at his back. At some point, the defendant placed his left foot on the victim's back. The defendant used his left hand to take the victim's hands and secure them behind his back. None of the witnesses that testified at trial observed a struggle between the defendant and the victim. Moments later, the defendant then fired his weapon once at the victim, killing him. After the defendant shot the victim, witnesses observed the victim lying on the ground with his hands out in front of him.

The state police investigated the incident and, pursuant to a search and seizure warrant, seized articles of clothing from the defendant's home. Among those items were the pants that the defendant was wearing during the incident. Robert O'Brien, a forensic criminalist with the office of the chief medical examiner, concluded that the defendant's left pant leg contained a particle consistent with gunshot residue. William Bodziak, a footwear impressions expert, concluded that a discoloration pattern on the victim's shirt correlated in size and shape with the boots that the defendant wore at the time of the incident. Virginia Maxwell, a criminologist with the state forensic science laboratory conducted tests on the victim's clothing. She found no concentrations of mud or other vegetative materials on the victim's pants beneath his knees. An examination of the pockets of the jacket that the victim had in his possession revealed a folding knife with a blade approximately 2.75 inches in length. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence adduced at trial was insufficient to establish his guilt of the crime of manslaughter in the first degree with a firearm in violation of § 53a-55a. We disagree.

As a preliminary matter, we note that in light of our resolution of the defendant's claim pertaining to the denial of his right to present a defense, we will not address every claim that he has raised. Nevertheless, "[w]e must address the sufficiency of the evidence claim since the defendant would be entitled to an acquittal of the charge on which he claims insufficient evidence if he prevails on his claim." State v. Williams, 39 Conn. App. 18, 23-24, 663 A.2d 436 (1995), rev'd on other grounds, 237 Conn. 748, 679 A.2d 920 (1996); State v. Dunn, 26 Conn.App. 114, 123, 598 A.2d 658 (1991).

We begin by setting forth our well established standard of review for claims challenging the sufficiency 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 [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... In this 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 circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... 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....

"Additionally, [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 [trier of fact's] verdict of guilty." (Citations omitted; internal quotation marks omitted.) State v. McMahon, 257 Conn. 544, 566-67, 778 A.2d 847 (2001), cert. denied, 534 U.S. 1130, 122 S.Ct. 1069, 151 L.Ed. 2d 972 (2002).

We also note that for the purposes of sufficiency review after concluding that a new trial is required, we review the sufficiency of the evidence as the case was tried; in other words, we review the evidence in its improperly restricted state, impropriety notwithstanding. "Claims of evidentiary insufficiency in...

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