State v. Tomlin
| Decision Date | 25 November 2003 |
| Docket Number | (SC 16524). |
| Court | Connecticut Supreme Court |
| Parties | STATE OF CONNECTICUT v. MICHAEL D. TOMLIN |
Borden, Norcott, Palmer, Vertefeuille and Zarella, Js. Mark A. Rademacher, assistant public defender, for the appellant (defendant).
Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, was David I. Cohen, state's attorney, for the appellee (state).
The defendant, Michael D. Tomlin, 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-55a (a)1 and 53a-55 (a)(3).2 On appeal, the defendant claims first that he was denied his constitutional right to notice of the charge against him when he was convicted of the crime of manslaughter in the first degree with a firearm, a crime that the defendant was not charged with in the information and that, according to the defendant, is not a lesser included offense of murder. Second, the defendant claims that the trial court improperly declined to instruct the jury on manslaughter in the second degree and criminally negligent homicide as lesser included offenses of murder. We agree with the defendant's second claim. Accordingly, we reverse the judgment of the trial court.
We begin by noting that the defendant's claim regarding the trial court's failure to instruct the jury on manslaughter in the second degree and criminally negligent homicide requires us, on appeal, to review the facts in the light most favorable to the defendant.3 E.g., State v. Smith, 262 Conn. 453, 470, 815 A.2d 1216 (2003). On April 3, 2000, the defendant was driving with two friends, Jose Garcia and Manuel Ruiz, in the vicinity of Veterans Memorial Park (park) in Norwalk. The victim, Arley Zapata, who was accompanied by three friends, Michelle Cyr, Timothy Montigue and Jenna St. James, also was driving around the park at the same time as the defendant.
The defendant was stopped at the park exit with his turn signal activated to turn left when the victim pulled alongside on the right. While alongside the defendant's car, an occupant in the victim's car shouted several hostile remarks to Ruiz, who was seated in the backseat of the defendant's car. The victim then turned right and exited the park. Instead of turning left to exit the park, the defendant turned right and headed in the same direction as the victim. The defendant then proceeded a short distance to his house. While Ruiz and Garcia waited in the car, the defendant went into his house with the intention of calling a friend for help but decided not to call because he feared his mother would overhear.
After the defendant had returned to his vehicle, he proceeded to a local beach on the basis of his suspicion that the victim might have driven there. As the defendant entered the beach area, he noticed that the victim was leaving. The defendant turned around and followed the victim. Thereafter, the victim stopped at a traffic light and the defendant pulled alongside the victim's car. From inside the victim's car, Montigue began shouting at the defendant. In response, the defendant lowered his window and asked Montigue "[what was] the problem." Montigue replied by threatening that he was going to hurt the defendant and one of the defendant's passengers. The defendant told Montigue to "drop it," and Montigue replied, "[w]e ain't droppin' [anything]." As the traffic light turned green, the victim cut in front of the defendant's car and stopped. Montigue and the victim then exited the victim's car and approached the defendant's car. The defendant and Garcia exited the defendant's car in an effort to defuse the situation. Montigue continued to shout at Garcia in the street. Traffic was stopped and other drivers began to blow their horns. The victim and the defendant eventually agreed to go someplace else. The defendant and Garcia and the victim and Montigue returned to their respective vehicles and proceeded to a parking lot across the street.
The defendant parked his car in close proximity to the victim's car. All of the occupants exited both vehicles and continued to exchange words. The victim immediately approached the defendant, took his shirt off and threw it to the ground. The defendant tried to resolve the situation by explaining that he did not know the victim and wanted to know what the problem was. The defendant did not pull into the parking lot with the intention of fighting with the victim but, rather, thought that he could resolve the situation by explaining to the victim that the victim must have mistakenly thought that the defendant was someone else.
The victim threw a punch at the defendant and the defendant swung back in defense. The defendant jumped back and told the victim, "wait a minute . . . chill," in an effort to pacify the victim. At this point in time, Garcia attempted to assist the defendant by restraining the victim. At the same time, Montigue was provoking a fight with Garcia. After exchanging words with Ruiz, the victim reached over the defendant and hit Ruiz. The defendant attempted to prevent the victim from hitting Ruiz again while Montigue and Garcia began to fight. Amid the confusion, the defendant heard the victim say, "I got something for you. . . ." On the basis of this statement and the victim's prior statement to the defendant that, "I'll smoke you," the defendant feared that the victim was going to go back to his car to get a gun. The defendant then proceeded to his car where he removed a loaded .38 caliber handgun from under the driver's seat.
The defendant then fired a shot into the air with the intention of "giv[ing] a shock to everybody and stop[ping] everybody, and maybe they would run, maybe they would just stop." Everyone stopped for a brief moment, but, immediately thereafter, Montigue hit Garcia and the victim hit Ruiz again. The victim then approached the defendant, and the defendant told him to stop. The victim nevertheless continued to approach the defendant and stated, "you think [you're] bad because you got that gun." The defendant then fired three times in rapid succession at what he believed to be the ground in front of the victim. After the defendant had fired two shots, he noticed a bullet hole in the victim's pants, but did not think he seriously injured the victim. The victim attempted to walk back to his car but collapsed.
The defendant then left the scene with Ruiz, discarded the gun in a storm drain and abandoned his vehicle. The police and paramedics arrived at the scene and found the victim without a pulse. The victim later died as a result of one or more gunshot wounds. Forensic testing revealed that the victim had been shot in the right thigh, chest and back. Forensic testing also revealed that the bullets extracted from the victim had been fired on a downward trajectory and from the defendant's gun.
On the evening of April 3, 2000, the police arrested Ruiz at his home. Ruiz showed the police officers where the defendant had discarded the gun. The defendant surrendered to the police the following evening. Thereafter, the state charged the defendant with murder in violation of General Statutes § 53a-54a (a),4 alleging in the information that the defendant, "with intent to cause the death of [the victim] did shoot and cause the death of [the victim]. . . ." In January, 2001, a jury found the defendant guilty of the lesser included offense of manslaughter in the first degree with a firearm. On March 20, 2001, the trial court rendered judgment in accordance with the jury verdict and sentenced the defendant to thirty years imprisonment. The defendant appealed from the judgment of conviction to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-4.
On appeal, the defendant claims that: (1) he was denied his constitutional right to notice of the charge against him when he was convicted of the crime of manslaughter in the first degree with a firearm, a crime that the defendant was not charged with in the information and that, according to the defendant, is not a lesser included offense of murder; and (2) the trial court improperly declined to instruct the jury on manslaughter in the second degree and criminally negligent homicide as lesser included offenses of murder.
We begin by reviewing the defendant's claim that he was denied his sixth amendment right to notice of the charge against him5 when he was convicted of manslaughter in the first degree with a firearm. The defendant advances two theories in support of his claim. First, the defendant contends that the information charged him with murder and, because the allegation that he "did shoot" the victim is not an essential element of murder, it should not have been considered in a lesser included offense analysis. Second, the defendant contends that, even if the allegation in the information that he "did shoot" the victim is considered properly in a lesser included offense analysis, it still was improper to instruct the jury with respect to the crime of manslaughter in the first degree with a firearm because the crime of manslaughter in the first degree with a firearm provides for three alternative ways in which the crime may be completed, two of which do not involve the actual use of a firearm.
As a threshold matter, we address our standard of review. Whether one offense is a lesser included offense of another presents a question of law. See State v. Yurch, 37 Conn. App. 72, 77, 654 A.2d 1246, appeal dismissed, 235 Conn. 469, 667 A.2d 797 (1995). Accordingly, our review is de novo. E.g., State v. Holmes, 257 Conn. 248, 252, 777 A.2d 627 (2001), cert. denied, 535 U.S. 939, 122 S. Ct. 1321, 152 L. Ed. 2d 229 (2002).
Before we address the defendant's first claim, we note that the defendant did not take exception to the trial...
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