State v. Carter
State v. Carter
Opinion of the Court
Opinion
The defendant, Kenneth Carter, appeals from the judgment of conviction, rendered against him following a jury trial in the New London Superior Court, on charges of attempt to commit assault in the first degree with a deadly weapon in violation of General Statutes §§ 53a-49 (a) (2) and 53a-59 (a) (1), reckless
The jury was presented with the following evidence upon which to base its verdict. At approximately 10:30 p.m. on October 29, 2008, as Officer Brigitte Nordstrom of the Groton town police department was participating in the execution of a search warrant, she received a text message from one of her confidential informants, Jeffrey Mumford. Mumford advised her that the defendant, whom she had known for many years, was going to “pop this white dude” at the Time Out Sports Café in Groton (café). When Nordstrom replied to Mumford that if she responded to his tip he might be exposed as a confidential informant, he texted back, “I don’t care, keep me safe.” Nordstrom then called Mumford on his cellular telephone to learn what the defendant was wearing and where he could be found inside the café.
Nordstrom next informed her supervisor, Lieutenant James Bee, of the reported situation at the café and he, in turn, informed his shift commander, Lieutenant Ben Carpenter, who arranged at once for certain uniformed officers to meet with Nordstrom and Bee in the parking lot of a firehouse not far from the café. It was decided at that meeting that the entire team would proceed to
After arriving at the café, the team entered as planned, with Nordstrom, Bee and Ashbey leading the way, followed by Wolfe and Savino several steps behind. As they entered, Nordstrom, who was carrying her unholstered service pistol to her side, and Bee, who was unarmed, quickly spotted the defendant standing at the bar to their immediate left, in the company of two women. When the officers first saw him, the defendant was leaning against the bar with the left side of his body. As Nordstrom and Bee turned to move in his direction, however, he immediately turned to face them while pulling a small handgun from his right front pants pocket. He raised the gun and pointed it at Nordstrom’s midsection. Upon seeing the defendant pull his gun, Nordstrom loudly shouted, “gun,” then, “he’s got a gun,” to warn her fellow officers, while raising her own gun to point it at him. Bee, who saw the defendant holding something that could have been a gun, also shouted, “gun,” to alert his fellow officers as Nordstrom ordered the defendant to drop his gun, which he did not do. Instead, the defendant and Nordstrom had a brief standoff, with their guns pointed at each other but neither attempting to shoot, until the defendant turned away toward the bar, with his gun and both of his hands in front of him and his back to Nordstrom and Bee.
Wolfe and Savino also testified that they never saw the defendant holding a gun. According to Wolfe, by the time he entered the café, Nordstrom and Bee were already struggling with the defendant. Savino explained that his attention, which was initially focused on the crowd, was not drawn to the defendant until he heard his fellow officers’ shouted warnings, whereafter he turned and saw them struggling with the defendant. Wolfe and Savino both confirmed Ashbey’s account of their unsuccessful efforts to secure the defendant’s hands both before and after they brought him to the floor, and of the defendant’s eventual submission to handcuffing once they moved away from him and Ash-bey threatened to shoot him. Wolfe further testified that after the defendant was subdued, a search of his
Upon leaving the café, the defendant, who had once played youth basketball on a team that Nordstrom coached, told her that he would never pull a gun on her. In his testimony, although he denied pulling a gun on Nordstrom, the defendant confirmed that as he left the café he said to her, “Brigitte, I would never pull a gun out on you.” Thereafter, Savino transported the defendant to the police station for processing.
At the station, Savino waited with the defendant outside of the booking room. Seated and handcuffed, the defendant studied Savino’s face and asked him where he lived. Savino ignored the question. The defendant then asked Savino where his mother lived and said that he would molest her and enjoy the process. The defendant, while staring at Savino’s face, then stated that he would hold a grudge against him: “No matter how long I’m in jail for, no matter how rich I ever got, I still remember your face, and I’d still hold my grudge.” Finally, the defendant asked Savino, “[w]hat if I see you tomorrow outside of work leaning outside of my job?” When Savino responded, “[w]hat if?” the defendant stated, “I’d kick your ass.”
Savino believed that the defendant’s statements were genuine threats to himself and his family. He testified that although he had been insulted on the job before, he took the defendant’s statements seriously because they concerned his family. Savino testified that he felt
The state also presented testimony from James Stephenson, a state firearms tool mark examiner. Stephenson testified that, based upon his examination of the defendant’s gun, it was an operable, .22 caliber Jennings semiautomatic handgun with a magazine containing five bullets. There was no bullet in the chamber. Stephenson testified that to prepare the gun for firing, a would-be shooter would have to pull back the slide and release it, causing a cartridge to be transferred from the magazine in the handle of the gun to the chamber. Although this action, known as “racking the gun,” could be performed in a matter of seconds, it required deliberate action. If the gun was not racked, and thus had no bullet in the chamber, it could not be fired.
Following a jury trial, the defendant was convicted on all eight counts of the substitute information, including those charging him with attempted assault in the first degree, reckless endangerment in the first degree and threatening in the second degree.
I
The defendant first claims that insufficient evidence was presented at trial to sustain his conviction of
We begin by setting forth our standard of review. “[T]he [d]ue [pjrocess [c]lause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. . . . The standard of review for a sufficiency of the evidence claim employs 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. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support [its] verdict. . . .
“It is axiomatic that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. ... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the
Section 53a-49 (a) provides in relevant part that “[a] person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” Subsection (b) of § 53a-49, in turn, provides in relevant part: “Conduct shall not be held to constitute a substantial step under [§ 53a-49 (a) (2)] unless it is strongly corroborative of the actor’s criminal purpose . . . .” To prove an actor guilty of attempt under § 53a-49 (a) (2), the state need not show that his conduct progressed so far as to constitute the final step in a course of conduct planned to culminate in the commission of the crime, had the circumstances been as he believed them to be. Such conduct is separately punishable as an attempt under § 53a-49 (a) (1). Instead, § 53a-49 (a) (2) makes punishable, as an attempt to commit a particular crime, any act or omission performed by the actor with the mental state required for commission of that crime, which is both strongly corroborative of the actor’s criminal purpose and at least the start of a line of conduct
General Statutes § 53a-59 (a), in turn, provides in relevant part that “[a] person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person ... by means of a deadly weapon or a dangerous instrument . . . .” Accordingly, a conviction of attempt to commit assault in the first degree, in violation of §§ 53a-49 (a) (2) and 53a-59 (a) (1), requires proof beyond a reasonable doubt of two elements: (1) that while acting with the intent to cause serious physical injury to another person, (2) the defendant intentionally took a substantial step in a course of conduct planned to cause such injury to the other person by means of a deadly weapon or dangerous instrument.
“A person acts ‘intentionally’ with respect to a result . . . described by a statute defining an offense when his conscious objective is to cause such result . . . .” General Statutes § 53a-3 (11). The statute thus requires that when the defendant engaged in the conduct claimed to constitute the offense, it was his conscious objective to cause serious physical injury to Nordstrom. It matters not, in most cases, whether the actor harbored his criminal intent for any particular period of time prior to acting on that intent, or that he continued to harbor it for any particular period of time thereafter. What matters instead is that he had the requisite intent at the moment he engaged in the conduct claimed to constitute the crime. See State v. Cooper, 227 Conn. 417, 444, 630 A.2d 1043 (1993) (formation of specific intent does not require planning or premeditation, but rather, it may be formed instantaneously).
“It is well established that the question of intent is purely a question of fact. . . . The state of mind of one
Here, the conduct by which the defendant was alleged to have taken a substantial step in a course of conduct planned to culminate in his commission of assault in the first degree, and thus to have committed attempted assault in the first degree, was the drawing of his handgun and the pointing of it at Nordstrom’s midsection. That, then, is the conduct that the defendant must be shown to have been engaged in with the intent to cause serious physical injury to another person. Although the defendant never fired a shot at Nordstrom after engaging in such conduct, nor even racked his gun to make it ready for firing before he turned away toward the bar in what proved to be a successful attempt to return the gun to his right front pants pocket, the question presented to the jury was not with what intent he ended his brief standoff with Nordstrom, but with what intent he began it. The issue on appeal is thus whether the evidence supports a finding that, in the initial part of
Examining the defendant’s conduct in the surrounding circumstances, viewed in the fight most favorable to the state, the evidence supports the following reasonable conclusions. Before Nordstrom and her colleagues appeared at the door of the café, the defendant was in illegal possession of a loaded, operable handgun and a container of illegal drugs. As a person previously convicted of both assault in the third degree and possession of marijuana, it was unlawful for him to possess a firearm of any kind. Moreover, as the subject of a domestic violence protective order, he had been ordered to surrender all firearms in his possession to the authorities pursuant to General Statutes § 46b-38c (e).
On the other hand, the defendant had told at least one other person, Mumford, Nordstrom’s confidential informant, that he intended to “pop this white dude” in or around the café that evening. For that purpose, he was armed with a loaded, operable handgun that he had conveniently placed in his right front pants pocket, where he could easily access it and put it to its intended use. By reasonable implication, he believed that the gun was ready for that use, which would only require him to pull back the slide in order to rack it and prepare it for firing. On this evidence, the defendant could reasonably be found to have planned and prepared himself to
When Nordstrom and Bee first came through the front door of the café, the defendant was standing by the bar to their immediate left. Although, at that moment, the officers were wearing blue shirts with the word “police” emblazoned on the front in bright yellow letters, they were then facing forward in such a way that the defendant, who reached immediately for his gun as he began to turn toward them, may only have seen Nordstrom’s unholstered gun, not her familiar face or the word police on her and Bee’s blue shirts. The jury thus reasonably could have concluded that the defendant pulled out his gun and aimed it at the officers before he realized that they were police, much less police with whom he was acquainted. Perhaps he believed that one of them was the “white dude” for whom he had been lying in wait. Perhaps he believed that they were friends of the white dude who had come to the café to attack him before he attacked their friend. In any event, the jury could reasonably have concluded that he drew his gun and pointed it at Nordstrom, whom he then perceived to be an unknown armed intruder rather than a known police officer, with the intent to shoot her and cause her serious physical injury because she surprised and endangered him as he lay in wait for his intended victim. Such conduct could reasonably be found to have been not only the start of a line of conduct leading naturally to shooting Nordstrom and causing her serious physical injury, but to have been strongly corroborative of his alleged purpose to engage in such conduct and cause such results, thus constituting an attempt to commit assault in the first degree against Nordstrom.
The foregoing explanation of the defendant’s conduct is also supported by other evidence adduced at trial. To begin with, by the time Nordstrom and Bee turned to their left to face the defendant, revealing the word
Although the defendant may never have intended to shoot and cause serious physical injury to a police officer on the evening in question, his threshold intent, to shoot and injure Nordstrom when, by inference, he thought that she was someone else was sufficient to establish the mental state required for commission of attempted assault in the first degree, regardless of how quickly his intent was abandoned. See State v. Wilcox, supra, 254 Conn. 468 (crime complete when act done with requisite intent).
In conclusion, we find that the evidence presented at trial was sufficient to sustain the mental state element of attempted assault in the first degree.
H
The defendant next claims that insufficient evidence was adduced at trial to sustain his conviction of reckless endangerment in the first degree in violation of § 53a-63 (a). The defendant contends that reversal of his conviction of that offense is required because the state failed to establish that he engaged in conduct that evinced an extreme indifference to human life or created a substantial and unjustifiable risk of serious physical injury to another person. We disagree.
As noted in part I of this opinion, we employ a two part test in evaluating claims of insufficient evidence: “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
Section 53a-63 (a) provides: “A person is guilty of reckless endangerment in the first degree when, with extreme indifference to human life, he recklessly engages in conduct which creates a risk of serious physical injury to another person.” According to General Statutes § 53a-3 (13), “[a] person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .” In determining whether a defendant has acted recklessly for purposes of § 53a-63 (a), “[s]ubjective realization of a risk may be inferred from [the defendant’s] words and conduct when viewed in the light of the surrounding circumstances.” (Internal quotation marks omitted.) State v. Davila, 75 Conn. App. 432, 439, 816 A.2d 673, cert. denied, 264 Conn. 909, 826 A.2d 180 (2003), cert. denied, 543 U.S. 897, 125 S. Ct. 92, 160 L. Ed. 2d 166 (2004). The dispositive issue, therefore, is whether the defendant, when he pointed a firearm at police officers in a crowded bar and subsequently struggled with officers while they were attempting to subdue him, recklessly created and consciously disregarded a substantial and unjustifiable risk of serious physical injury to another person.
On appeal, the defendant claims that the state, in arguing its case to the jury, limited the basis for its claim of reckless endangerment to his conduct of later struggling with police while holding a loaded gun after
In its closing arguments, however, the state presented a much broader theory of reckless endangerment than that suggested by the defendant. The state claimed, more particularly, that by pointing his gun at Nordstrom in the crowded café, then struggling with Wolfe and Savino as they attempted to disarm him and take him into custody until Ashbey threatened to shoot him, he created an extremely dangerous situation in which an officer or patron could have been shot and seriously injured if the officers’ or a third party’s foreseeable intervention resulted in gunfire.
Here, even though the defendant’s gun was not racked, sufficient evidence was presented at trial for the jury to conclude that the defendant — by engaging in his challenged conduct — acted with extreme indifference to human life, and consciously disregarded a substantial and unjustifiable risk that such conduct would cause serious physical injury to another person. Pointing a firearm at a police officer creates a substantial risk that an armed response to the defendant’s conduct will result in gunfire and, thus, in serious injury to officers or bystanders. See State v. Davila, supra, 75 Conn. App. 439 (subjective realization of risk may be inferred from person’s conduct when viewed in light of surrounding circumstances). The defendant is no less culpable because his own gun could not have fired a shot; the danger engendered by his conduct arose from the distinct potential that others in the crowded bar would fire their weapons at him. Such conduct thus created a dangerous environment in which, as the prosecutor argued to the defendant’s jury, disaster was averted only due to the professionalism and restraint
Ill
The defendant’s final claim on appeal is that there was insufficient evidence to establish that his statements to Savino constituted constitutionally impermissible speech, as required for conviction under § 53a-62 (a) (2). In determining whether the defendant’s speech may be regulated by the state, we look to whether it falls within the broad protections of the first amendment to the United States constitution, or whether it can be characterized as an unprotected “true threat” — speech that would cause a reasonable person to foresee that the person to whom the speech was directed will believe that he will be subjected to physical violence. State v. DeLoreto, 265 Conn. 145, 156, 827 A.2d 671 (2003).
We begin our inquiry by setting forth the standard of review, which seeks to strike a balance between the interests of protecting the freedom of speech and regulating statements that are devoid of any communicative value, such as true threats. “The standard of review we [ordinarily] apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second,
“The First Amendment, applicable to the States through the Fourteenth Amendment, provides that Congress shall make no law . . . abridging the freedom of
“The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution. . . . The First Amendment permits restrictions upon the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” (Internal quotation marks omitted.) State v. DeLoreto, supra, 265 Conn. 153-54.
“[T]rue threats are among the limited areas of speech which properly may be restricted without violating the protections of the first amendment.” (Internal quotation marks omitted.) State v. Krijger, supra, 130 Conn. App. 479. “True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects] individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. . . .
“[A]s expansive as the first amendment’s conception of social and political discourse may be, threats made
“In the context of a threat of physical violence, [w]hether a particular statement may properly be considered to be a threat is governed by an objective standard — whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. ... A true threat, where a reasonable person would foresee that the listener will believe he will be subjected to physical violence upon his person, is unprotected by the first amendment. . . . Moreover, [ajlleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners.” (Citations omitted; internal quotation marks omitted.) State v. DeLoreto, supra, 265 Conn. 154-56.
In resolving the defendant’s final claim, we must therefore determine “whether a reasonable person would foresee that the [defendant’s] statement would be interpreted by [Savino] as a serious expression of intent to harm or assault.” Id., 156. The state claims that several of the defendant’s statements to Savino constituted true threats. They included that he “wanted to molest [Savino’s] mother”; “I would fuck her; she’d be a good fuck”; “No matter how long I’m in jail for, no matter how rich I ever got, I still remember your face, and I’d still hold my grudge”; and, “I’ll kick your ass [if I see you at my place of work tomorrow].” A reasonable person would foresee that Savino would
The defendant contends that his statements cannot be considered true threats because they were conditional in nature and, as such, merely repugnant acts of puffery. We do not agree that the defendant’s particular verbalization saves his statements from the purview of § 53a-62 (a) (2). “Imminence ... is not a requirement under the true threats doctrine. . . . Rather, a prohibition on true threats protects] individuals from fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur.” (Citation omitted; internal quotation marks omitted.) State v. DeLoreto, supra, 265 Conn. 158-59. The prospective nature of the defendant’s statements, therefore, does not affect our analysis. Because a reasonable person would foresee that Savino would interpret the statements as a serious expression of an intention to harm or assault, the state may regulate such statements under § 53a-62 (a) (2).
Considering the defendant’s statements to Savino “in light of their entire factual context”; (internal quotation marks omitted) id., 156; we find that they constituted true threats. After the officers handcuffed the defendant, Savino transported him to the police station. At the station, Savino waited with the defendant outside of a booking room until the defendant could be processed. The defendant began to stare at Savino and study his face. In addition to threatening Savino and his mother, the defendant also asked Savino where he and his mother lived. The defendant’s calm demeanor suggested that his statements were serious and his careful scrutiny of Savino’s face intimated that he was attempting to remember it. Under these circumstances, a reasonable person would foresee that the statements would be interpreted by Savino as a serious expression of the defendant’s intent to harm or assault him and/
The judgment is affirmed.
In this opinion the other judges concurred.
The defendant was also convicted of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c (a) (1); carrying a pistol or revolver without a permit in violation of General Statutes § 29-35 (a); possession of narcotics in violation of General Statutes § 21a-279 (a); possession of a controlled substance in violation of General Statutes § 21a-279 (c); and violation of a protective order in violation of General Statutes § 53a-223 (a). The defendant makes no claim on appeal with respect to his conviction of those charges.
Based upon the testimony of the officers at trial, there were twenty-five to fifty patrons at the café.
See footnote 1 of this opinion.
On count one of attempted assault in the first degree, the court imposed a sentence of twenty years imprisonment, execution suspended after fourteen years, followed by five years of probation, constituting the total effective sentence. On the counts of reckless endangerment in the first degree, possession of marijuana and threatening in the second degree, the court imposed concurrent terms of one year imprisonment. On the counts of criminal possession of a pistol, carrying a pistol without a permit, possession of crack cocaine and criminal violation of a protective order, the court imposed concurrent terms of five years imprisonment.
General Statutes § 46b-38c (e) provides in relevant part: “A protective order issued under this section may include provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant . . .
The jury was not instructed under § 53a-50 because the defendant never sought to defend this case on the ground of renunciation. Instead, he denied that he ever had the criminal purpose of inflicting serious physical injury
On this score, the prosecutor argued: “The officers testified that there were twenty-five to fifty people in the bar that night. That’s twenty-five to [fifty] human fives. We heard testimony from Bee and Nordstrom [that] the defendant drew a loaded weapon and pointed it at Officer Nordstrom. He wouldn’t surrender it. He didn’t follow Nordstrom’s command. He turned to the bar and then he’s set up by Officer Savino and Wolfe. He resisted their efforts to make that situation safe. . . . [W]e heard testimony . . . about the destructive power of a .22 caliber bullet. [We heard testimony] from Sergeant Ashbey about how close he came to discharging his rifle at the defendant because the defendant would . . . not comply with the officer’s commands. The state would argue that that evidence shows that [the defendant] had [an] indifference or had very extreme indifference to human life and that his conduct was indeed reckless and that . . . with a handgun there is a serious risk of physical injury.” In his rebuttal argument, the prosecutor urged the jury to understand that actual harm was avoided by the officers’ self-restraint, despite the actual danger created by the defendant’s reckless conduct: “[W]ell-trained, experienced officers can do their jobs correctly. . . . [The officers] exercised [restraint]. Remember Brigitte Nord-strom was talking about tightening her finger on the trigger, taking up the slack. . . . Sergeant Ashbey was talking about taking his finger off the trigger guard and putting it on the trigger of his patrol rifle. Why didn’t they shoot? Because they’re professionals, they’re not supposed to. . . . There were no shots fired. No innocent bystanders injured.”
Title 18 of Pennsylvania Consolidated Statutes Annotated, § 2705, provides: “A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.”
Our holding is also consistent with our own legislative history. See Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-63 (West 1971), commission comment (“[section] 53a-63 . . . cover[s] dangerous conduct which falls short of assault because ... of a lack of actual injury taking place”).
Reference
- Full Case Name
- STATE OF CONNECTICUT v. KENNETH CARTER
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- 17 cases
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- Published