State v. Terry

• Decision Date: 22 December 2015
• Docket Number: No. 35768.,35768.
• Citation: 128 A.3d 958,161 Conn.App. 797
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Reginald TERRY.

161 Conn.App. 797

128 A.3d 958

STATE of Connecticut

v.Reginald TERRY.

No. 35768.

Appellate Court of Connecticut.

Argued Sept. 16, 2015.

Decided Dec. 22, 2015.

Kirstin B. Coffin, assigned counsel, for the appellant (defendant).

Melissa Patterson, assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Anthony Bochicchio, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, C.J., and BEACH and LAVERY, Js.

DiPENTIMA, C.J.

The defendant, Reginald Terry, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a–59 (a)(1).¹ On appeal, the defendant claims that (1) the evidence was insufficient to support the judgment of conviction, (2) the trial court provided an improper instruction in its jury charge, (3) the court abused its discretion by limiting the defendant's cross-examination of a witness regarding the victim's criminal record, and (4) the court provided an improper curative instruction to the jury. We affirm the judgment of the trial court.

Faced with conflicting evidence and testimony regarding the events in this case, the jury reasonably could have found the following facts.² Late in the evening on May 2, 2012, near 531 Garden Street in Hartford, the defendant stabbed Herman Waden in the chest with a knife during a verbal altercation. The assault took place in front of a multiunit, single story, horseshoe shaped apartment complex, within which was the apartment of Waden's sister.

That day Waden had been visiting his sister in her apartment. When Waden left, he "ran into [his] friend" Anthony McKenzie. They talked outside of the apartment complex near a fence that had multiple openings and ran parallel to the sidewalk along Garden Street. A short time later, the defendant approached the men.

During the unexpected encounter, Waden accused the defendant of stealing from Waden's brother, who was dating the defendant's mother. He demanded that the defendant stop taking his brother's money, otherwise he and the defendant would "have problems." The defendant then stabbed Waden in the chest as McKenzie grabbed the defendant's arm to stop him. Waden then fled to his sister's apartment. Unable to enter the front door, Waden walked to the back door of his sister's apartment, where he collapsed and later was found by the police. Waden was transported to a hospital where he stayed for approximately two weeks. Before being discharged, Waden provided a statement to the police department concerning the assault.

The defendant was arrested and charged two weeks after the assault. Following a three day jury trial, the defendant was found guilty. The court sentenced him to fifteen years of incarceration and to five years of special parole. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to support the judgment of conviction of assault in the first degree. Specifically, he contends that the state failed to disprove the justification defense of self-defense beyond a reasonable doubt. We are not persuaded.

We first set forth additional facts that are relevant to this claim. Following his arrest, the defendant provided the investigating officer, Detective Anthony Rykowski of the Hartford Police Department, a voluntary statement. At trial, the state produced the defendant's statement, the court admitted it into evidence as a full exhibit, and the statement was read to the jury. In the statement, the defendant claimed that McKenzie and he were talking outside the apartment complex where Waden's sister lived. According to the defendant, Waden approached them and accused the defendant of stealing from Waden's brother. After denying Waden's allegation, the defendant told Waden to "leave [him] alone and to go about his business...." However, "every time [the defendant] moved, [Waden] moved." The defendant saw Waden "digging in his pockets," which prompted him to take out his knife, aim for Waden's chest, and "hit" him with the knife despite McKenzie's attempt to stop the defendant. The defendant explicitly stated in his voluntary statement that if he had had a gun, he would have shot Waden. The defendant concluded his voluntary statement with: "I told [Waden] I was the wrong person to fuck with, and he didn't listen."

The state also presented Waden as a witness. He testified to the events of the day of the assault. Specifically, he testified to his version of the assault, to having been convicted of felonies and violent misdemeanors,³ to ingesting cocaine earlier in the day of the assault, and to providing a statement to the police while hospitalized, which was admitted into evidence as a full exhibit. As to the statement given to police while in the hospital, Waden testified that he was "dizzy on the drugs" and that he "really [did not] know what [he] was really saying...."

On cross-examination, the defendant attempted to impeach Waden on three grounds. First, the defendant pressed Waden on his convictions, namely, carrying a dangerous weapon and other violent crimes. Waden explained that the dangerous weapon conviction stemmed from an incident that occurred while he was transporting a pistol from his old residence to his new one. Although he knew that a felon cannot legally own a pistol, Waden testified that he nevertheless kept the pistol inside his home to protect his children. As to the various convictions of violent crimes, Waden testified that those were a "record about fistfights," but he "never tried to kill nobody."

The defendant next attacked Waden's credibility by cross-examining him on his alcohol and drug use. The defendant sought to impeach Waden's testimony concerning his alcohol use by pointing to medical records, which were admitted previously into evidence as a full exhibit, noting that he was addicted to alcohol. Waden denied this allegation, claiming that his father's alcoholism "turned [him] off" alcohol, and testified that he did not drink much. Waden testified that he was not an alcoholic despite being longtime drug user, characterizing himself as a "[function]al addict." Defense counsel then sought to attack Waden's testimony by cross-examining him on his drug use. Specifically, Waden was asked whether he was "coked up" on the night of the assault. He replied that he was not "coked up" to such a degree that he could not remember the events of that night.

Finally, the defendant attempted to impeach Waden's version of the assault through Waden's prior statement to the police while hospitalized. The statement was inconsistent with Waden's testimony as to certain facts leading up to the assault. Specifically, in the prior statement Waden had said that he and the defendant were having a conversation when the defendant asked for money to buy cocaine. He refused, and, as he was walking away, the defendant threw something at him. Waden returned and punched the defendant in the face. According to Waden's statement, the defendant then stabbed him twice. Waden's statement did not mention McKenzie or that the defendant had robbed his brother. Throughout the cross-examination regarding his statement, however, Waden was adamant that because of his condition while in the hospital, i.e., medicated and "in a lot of pain," he likely "[said] anything" to "get rid of [the detectives]," and did not remember what he said at that time.

The defendant's theory of self-defense was that he reasonably believed Waden was about to use deadly force and that he was unable to safely retreat. Specifically, the defendant argues that his version of the events—Waden's confronting him, refusing to leave the defendant alone, and "digging in his pockets"—demonstrates that he was justified to stab Waden in self-defense. Also, the defendant claims that no evidence was adduced at trial showing that he could safely retreat. We are not persuaded.

At the outset, we note that the defendant preserved this claim by moving for a judgment of acquittal at the close of the state's case and his case.⁴ See State v. Calabrese, 279 Conn. 393, 401, 902 A.2d 1044 (2006) ; Practice Book §§ 42–40 and 42–42. Next, we set forth the controlling law for a sufficiency claim. "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...." (Citation omitted; internal quotation marks omitted.) State v. Revels, 313 Conn. 762, 778, 99 A.3d 1130 (2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 1451, 191 L.Ed.2d 404 (2015).

The claim of self-defense is a justification defense. Hence, it "operate[s] to exempt from punishment otherwise criminal conduct when the harm from such conduct is deemed to be outweighed by the need to avoid an even greater harm or to further a greater societal interest.... Thus, conduct that is found to be justified is, under the circumstances, not criminal." (Internal quotation marks omitted.) State v. James E., 154 Conn.App. 795, 813, 112 A.3d 791 (2015).

General Statutes § 53a–19 governs the use of deadly force for self-defense.⁵

"Our Supreme Court has interpreted § 53a–19 (a) to require that a person may justifiably use deadly physical force in self-defense only if he reasonably believes both that (1) his attacker is using or about to use deadly physical force against him, or is inflicting or about to inflict great bodily harm, and (2) that deadly physical force is necessary to repel such an attack." (Emphasis omitted; ...