State v. Williams, 12769

• Decision Date: 16 October 1995
• Docket Number: No. 12769,12769
• Citation: 39 Conn.App. 18,663 A.2d 436
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Gregory WILLIAMS.

Page 436

663 A.2d 436

39 Conn.App. 18

STATE of Connecticut v. Gregory WILLIAMS.

No. 12769.

Appellate Court of Connecticut.

Argued April 20, 1995.

Decided Aug. 29, 1995.

Certification Granted Limited to the Following Issues Oct. 16, 1995.

Deborah DelPrete Sullivan, Asst. Public Defender, for appellant (defendant).

Susann E. Gill, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Linda N. Howe, Asst. State's Atty., for appellee (State).

Before FOTI, LAVERY and LANDAU, JJ.

LAVERY, Judge.

The defendant appeals from a judgment of conviction, after a jury trial, of attempted murder in violation of General Statutes §§ 53a-49 ¹ and 53a-54a, ² and assault in the first degree in violation of General Statutes § 53a-59(a)(1). ³ The jury found the defendant not guilty of one count of assault in the first degree under § 53a-59(a)(3). ⁴ The defendant claims that the trial court improperly (1) charged the jury that the law recognizes that a person can simultaneously possess both the intent to cause serious physical injury to a person and the intent to cause that person's death, (2) admitted evidence of the defendant's prior misconduct, (3) allowed the state on rebuttal to present evidence establishing the defendant's intent, and (4) submitted to the jury an alternative means of committing attempted murder for which there was no support in the evidence. Additionally, the defendant claims that the evidence was insufficient to support the convictions for attempted murder and assault in the first degree. We agree with the defendant that the trial court improperly charged the jury that a person can simultaneously intend to cause serious physical injury to a person and intend to cause that person's death. Therefore, we reverse the convictions for attempted murder and assault in the first degree.

The jury could reasonably have found the following facts. In April, 1991, the defendant and the victim had been living together on and off for about five years, and had a two year old son. On April 12, 1991, the victim traveled to California with her parents and her son. After spending time in California, the victim's son returned to Connecticut with the victim's parents. The victim traveled to North Carolina to attend a training course offered by her employer. At that time, the victim decided not to resume living with the defendant upon her return. Accordingly, when she returned to Connecticut on April 19, she and her son moved in with her parents in Stratford.

On April 20, 1991, the defendant came to the parent's home in Stratford looking for the victim. When the victim's father told the defendant that he was not welcome on the property and asked him to leave, the defendant began yelling at the victim's father that he would be sorry, that it may take one or two weeks but he would live to regret this day. The defendant also attempted to challenge the victim's father out into the street to fight him.

The following morning, the victim received a call from a coworker informing her that the defendant had just called from a mental hospital. The victim's former next-door neighbor also called to let her know that there was a pile of women's and children's clothing stacked behind the fence in the back of the victim's former residence. Believing that the defendant would not be at the house, the victim, her son and her sister went to the victim's former residence to retrieve their belongings.

The victim's sister, who had driven, parked behind the house near a pile of clothing. The women hurried from the car and began putting clothes into garbage bags. While the women were collecting the clothes, the defendant appeared. The victim ran, yelling to her sister to call the police. The defendant caught her and fell to his knees begging her not to leave him. The victim attempted to keep the situation under control by pretending to go along with him, but winked at her sister signaling her to go for help.

The victim's sister screamed at the victim to get into the car. The defendant then ran to the car, removed his son from the car seat and ran into the house. While holding his son, the defendant pushed the victim through the door of the house. The defendant then punched the victim in the face and hit her in the head with a baseball bat from the neighbor's yard. The defendant delivered eight blows to the victim's head until the baseball bat finally broke. The victim suffered serious head injuries and was close to death.

The dispositive issue in this appeal is whether the trial court incorrectly charged the jury that the law recognizes that a person can simultaneously intend to cause serious physical injury to a person and intend to cause that person's death. ⁵ Specifically, the defendant claims that the trial court's charge allowed the jury to render inconsistent guilty verdicts on the charges of attempted murder and assault in the first degree. We agree with the defendant that a person cannot simultaneously possess both the intent to cause serious physical injury and the intent to cause death with respect to the same victim. Therefore, the jury verdict convicting the defendant of assault in the first degree and attempted murder are legally inconsistent.

This court addressed a similar issue in State v. Fernandez, 27 Conn.App. 73, 604 A.2d 1308, cert. denied, 222 Conn. 904, 606 A.2d 1330 (1992). The Fernandez court found that guilty verdicts of attempted murder and assault in the first degree were not inconsistent because "the jury could reasonably have concluded that although the defendant commenced his attack on [the victim] with an intent to cause her serious physical injury, this intent was transformed, in midattack, into an intent to cause [the victim's] death." Id. at 94, 604 A.2d 1308. The jury in Fernandez was not required to find that the defendant possessed the relevant mental states simultaneously. The court concluded that "[b]ecause the jury was not required to find that the defendant possessed the relevant mental states simultaneously, its verdict was not logically inconsistent." Id.

We do not agree with the trial court's reliance on State v. Sharpe, 195 Conn. 651, 491 A.2d 345 (1985). In Sharpe, the defendant challenged his convictions of attempted murder and assault in the first degree on the ground that the charges arose out of the same transaction and violated his right to be free from double jeopardy. The Supreme Court never held that the mental states necessary for convictions of attempted murder and assault in the first degree could be possessed simultaneously. ⁶

In this case, because the trial court instructed the jury that the two intents could be possessed simultaneously, we must inquire as to whether this instruction allowed the jury to render legally inconsistent verdicts. To determine whether jury verdicts are legally inconsistent, "we look carefully to determine whether the existence of the essential elements for one offense negates the existence of the essential elements of another offense of which the defendant also stands convicted." State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). If the mental state necessary for a conviction of attempted murder negates the mental state necessary for a conviction of assault in the first degree when occurring simultaneously, the trial court's charge authorized the jury to render inconsistent verdicts.

To be guilty of attempted murder, a jury must find that the defendant acted with the conscious objective to cause the death of another person. General Statutes §§ 53a-49, 53a-54a, and 53a-3(11). To be guilty of assault in the first degree under § 53a-59(a)(1), a jury must find that the defendant acted with the conscious objective to cause serious physical injury to another person. General Statutes §§ 53a-59(a)(1) and 53a-3(11). " 'Serious physical injury' means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ...." General Statutes § 53a-3(4).

We find that a conscious objective to kill the victim negates a simultaneous intention to cause that victim only serious physical injury. The trial court's instruction authorizing the jury to find that the defendant could simultaneously intend to cause the victim serious physical injury and intend to cause the victim's death was incorrect. That instruction authorized the jury to render inconsistent jury verdicts for attempted murder and assault in the first degree.

In light of our resolution of this issue, we will address only the defendant's sufficiency of evidence claim. We 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. Wolff, 37 Conn.App. 500, 507, 657 A.2d 650 (1995); State v. Dunn, 26 Conn.App. 114, 123, 598 A.2d 658 (1991).

In reviewing the sufficiency of the evidence, we apply the two part test used in State v. Traficonda, 223 Conn. 273, 278, 612 A.2d 45 (1992). "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." (Internal quotation marks omitted.) Id.

We construe the evidence set forth in the statement of facts as the evidence most favorable to sustaining the verdict. We give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawn therefrom that support the jury's determination of guilt. State v. Sivri, 231 Conn. 115, 136-37, 646 A.2d 169 (1994).

The brutal attack perpetuated by the defendant on the victim with the baseball bat, the history of their...