State v. Terwilliger

• Decision Date: 02 December 2014
• Docket Number: No. 19013.,19013.
• Citation: 104 A.3d 638,314 Conn. 618
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. David B. TERWILLIGER.

314 Conn. 618

104 A.3d 638

STATE of Connecticut

v.David B. TERWILLIGER.

No. 19013.

Supreme Court of Connecticut.

Argued Feb. 20, 2014.

Decided Dec. 2, 2014.

Jeffrey C. Kestenband, Middletown, with whom was Marc D. McKay, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Patricia M. Froelich, state's attorney, and Mark Stabile and Matthew Crockett, senior assistant state's attorneys, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

Opinion

EVELEIGH, J.

The defendant, David B. Terwilliger, appeals from the judgment of conviction, rendered after a jury trial, of one count of intentional manslaughter in the first degree with a firearm pursuant to General Statutes §§ 53a–55a and 53a–55.¹ The defendant contends on appeal that (1) his conviction violated his constitutionally protected right against double jeopardy because a reasonable possibility existed that the defendant was acquitted of the offense at an earlier trial, and (2) in instructing the jury on the defendant's chosen defense of defense of premises, the trial court improperly construed the term “crime of violence” too narrowly, and refused to instruct the jury on the elements of the various offenses that fall within the definition of “crime of violence.” We disagree with the defendant and, accordingly, we affirm the judgment of the trial court.

In 2005, the defendant was tried for the murder of Donald Kennedy (Donald). The jury acquitted the defendant of murder, but convicted him of the lesser included offense of manslaughter in the first degree with a firearm. See State v. Terwilliger, 294 Conn. 399, 403–406, 984 A.2d 721 (2009). The jury empaneled in the 2005 trial did not specify whether it found the defendant guilty of intentional manslaughter in the first degree with a firearm or reckless manslaughter in the first degree with a firearm. “The defendant appealed to the Appellate Court, which reversed the judgment of conviction and ordered a new trial after concluding that it was reasonably possible that the trial court's jury instruction on defense of premises misled the jury.”Id., at 406, 984 A.2d 721. The state petitioned for certification, and this court affirmed the judgment of the Appellate Court. Id., at 400–401, 984 A.2d 721. The defendant was retried in 2011. The state charged the defendant with two counts of manslaughter in the first degree with a firearm. Specifically, the state charged the defendant with one count of intentional manslaughter in the first degree with a firearm pursuant to §§ 53a–55a and 53a–55 (a)(1), and with one count of reckless manslaughter in the first degree with a firearm pursuant to §§ 53a–55a and 53a–55 (a)(3). The jury convicted the defendant of intentional manslaughter in the first degree with a firearm. This appeal followed.²

The jury reasonably could have found the following facts. The defendant is married to Beverly Daniels. Daniels is the mother of Christine Kennedy (Christine). Christine married Donald, and together they had three children, Shauna Kennedy (Shauna), Kathryn Kennedy (Kathryn), and James Kennedy (James). In 2003, Donald and Christine were not living together. Kathryn and her four year old daughter were living with the defendant and Daniels. Donald had also previously lived in the basement of the defendant's home with the defendant's permission, but since that time he had moved out and rented an apartment in Webster, Massachusetts.

At some point during the day on January 5, 2003, James had an altercation with another young man from the neighborhood, Steven Gardner, which resulted in Gardner striking James. That evening, the defendant was inside of his home with Daniels, Kathryn, and Kathryn's daughter, when Donald unexpectedly drove to the defendant's house and parked in the defendant's driveway. Another neighborhood young man, Ben Monahan, had just parked his car on the street with the intention of visiting Kathryn and James. When he walked up to the defendant's driveway, Donald stated to Monahan “I'm drunk and I'm pissed,” and that he wanted to “beat the shit out of [the defendant]” because of a recent incident between the defendant and James. At one point, Donald asked Monahan if he wanted to go fight some people who were standing near a car across the street. Monahan demurred, and Donald then saw Gardner, who was also hoping to visit Kathryn that evening, walking toward the defendant's residence. According to Monahan, Donald “yell[ed] ‘[y]ou hit my son’ [and] something along the lines of ‘I'm going to kick your ass' or ‘[n]o one hits my son.’ ” Donald then grabbed Gardner, shoved him against a car at least once and possibly struck Gardner at least once in the face. Kathryn and Daniels both witnessed the confrontation from inside the house. Kathryn yelled at Donald, asking him to stop his behavior, while Daniels urged the defendant to go outside and defuse the situation. The defendant replied that he would “handle [the situation] however the hell [he] want[ed].” Before leaving the house, the defendant took from his desk a revolver that he had previously loaded with hollow point bullets and placed it into the pocket of his coat, where it was concealed. The defendant went outside and confronted Donald. Donald may have made a comment “like, ‘[c]ome on, let's get this started.’ ” According to Kathryn, the two men stared at each other. Then, the defendant walked up to Donald and kicked him in the groin, drew the revolver from his coat pocket, and fired it once. The bullet struck Donald in the lower chest and did not exit, causing him to fall to the ground. Daniels immediately called 911 and requested that emergency personnel arrive at the scene, while Kathryn took her daughter and ran to a neighbor's house. The defendant walked over to the house of another neighbor, Frank Langlois, and, after initially being resistant, handed the jacket containing the revolver over to Langlois. Langlois then went to check on Donald. Langlois observed that Donald was in possession of a closed folding knife that was attached to a chain connecting Donald's wallet to his pants, and Langlois detected a strong odor of alcohol. A subsequent autopsy revealed Donald's blood alcohol level was 0.15.

Prior to the defendant's second trial in 2011, the defendant moved to dismiss the prosecution, claiming that the continued prosecution of him for the events that occurred on January 5, 2003, constituted a violation of his right against double jeopardy. The trial court denied the motion, relying on State v. Boyd, 221 Conn. 685, 691, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S.Ct. 344, 121 L.Ed.2d 259 (1992), and concluded that, by failing to take steps to clarify the jury's verdict following the first trial while simultaneously seeking reversal of his conviction, the defendant had waived his right against double jeopardy. The defendant moved for reconsideration of the denial of his motion to dismiss, and the trial court, again relying on this court's decision in Boyd, denied the motion. The defendant subsequently renewed his motion following the trial.

In addition, at trial, the defendant specifically requested a jury instruction on defense of premises pursuant to General Statutes § 53a–20.³ As part of this instruction, the defendant requested that the trial court instruct the jury that the statutory term “crime of violence” included within its definition the following crimes: murder, manslaughter in the first degree, manslaughter in the first degree with a firearm, manslaughter in the second degree, assault in the first degree, assault in the second degree, assault of a victim sixty years or older in the first degree, assault of a victim sixty years or older in the second degree, unlawful restraint in the first degree, burglary in the first degree, and burglary in the second degree. The defendant also requested that the jury be instructed regarding the elements of each of these crimes. The trial court refused to give the defendant's requested charge, instead instructing the jury that the term “crime of violence” encapsulated the following offenses: “murder, manslaughter, rape, robbery, arson, burglary, assault with the specific intent to cause great bodily harm or assault in which a risk of great bodily harm was created.” The trial court did not instruct the jury on the elements of these crimes. This appeal followed.⁴

I

The defendant first claims that, because the state cannot demonstrate that there is not a reasonable possibility that the defendant was acquitted of intentional manslaughter in the first degree with a firearm by the jury following his trial in 2005, his 2011 conviction for intentional manslaughter in the first degree with a firearm pursuant to § 53a–55a should be vacated because it violates his right against double jeopardy secured by the fifth amendment to the United States constitution. In response, the state makes the following claims: (1) the defendant's double jeopardy claim is unpreserved because he failed to raise the issue at his first trial; (2) pursuant to this court's approach to its review of unpreserved claimed constitutional violations; see State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989) ; the defendant's double jeopardy claim is unreviewable because the defendant cannot show that a constitutional violation “clearly exists”; and (3) should this court reach the merits of the defendant's claim, the defendant cannot establish that he was acquitted of either intentional or reckless manslaughter in the first degree with a firearm. We conclude that accepting the defendant's position would necessitate us to speculate as to the jury's determination in the first trial. We decline to engage in a double jeopardy analysis on the basis of speculation. Further, even if we were to engage in such an analysis, under the particular circumstances of this case, we hold that the defendant was not...