State v. Bryan, 31654.

126 Conn.App. 597

12 A.3d 1025

STATE of Connecticut

v.Courtney BRYAN.

No. 31654.

Appellate Court of Connecticut.

Argued Nov. 29, 2010.Decided Feb. 15, 2011.

Glenn W. Falk, special public defender, with whom, on the brief, was Jennifer Rae Taylor, law student intern, for the appellant (defendant).Sarah Hanna, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Paul N. Rotiroti, senior assistant state's attorney, for the appellee (state).LAVINE, ROBINSON and FLYNN, Js.FLYNN, J.

The defendant, Courtney Bryan, 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) and attempt to commit assault in the first degree in violation of General Statutes §§ 53a–49 and 53a–59 (a)(1). The court merged both convictions as counseled by the rule of State v. Chicano, 216 Conn. 699, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991), and sentenced the defendant to six years imprisonment. On appeal, the defendant claims that the trial court erred in failing to instruct the jury on defense of others under General Statutes (Rev. to 2007) § 53a–19 ¹ in accordance with a written request to charge. We agree that the court improperly refused to charge on that defense and, accordingly, reverse the judgment and remand the case for a new trial.

The following evidence that the jury heard is pertinent. Abdelmoutalib Sofiane, the person who the jury found had been assaulted, and Farrah Lawrence had formerly dated for approximately two years after which Lawrence refused to see Sofiane any further. The defendant was the longtime friend and current boyfriend of Lawrence on March 1, 2007.

Here, some of the previous violent action between Sofiane directed at both Lawrence and the defendant after Lawrence's breakup with Sofiane becomes pertinent. Lawrence testified that she ended the dating relationship with Sofiane after Sofiane became threatening and abusive. After coming to her apartment uninvited, he smashed a television set, broke a telephone and pushed her. The defendant was made aware of this incident immediately afterwards by telephone call from Lawrence. Sofiane arrived at Lawrence's home again, shouting at her and stabbing himself. Again, Lawrence made known this incident to the defendant. On another occasion, Sofiane tried to run the car in which Lawrence and the defendant were riding off the road, yelling at them and spitting at their car. As they proceeded farther down the road, Sofiane blocked their path with his vehicle and shouted that he was going to “f––– [them] up,” which resulted in a complaint against Sofiane being made to the police. According to Lawrence, a couple of weeks after the road incident, after being refused admittance to Lawrence's home, Sofiane tried to head butt a glass door to gain entry, but when that did not succeed, he proceeded to break Lawrence's bedroom window with his fist and invaded Lawrence's home causing Lawrence to run out the front door and the police to come to the scene. Again, Lawrence made known this occurrence to the defendant. In a later incident, Sofiane threatened to kill Lawrence. Specifically, he said that if she got him into trouble “so he couldn't get his citizenship, he would kill [her] and run back to Morocco.”

It was against this evidentiary backdrop of violence, threats and abuse attributed to Sofiane that the record testimony of the defendant must be viewed as he saw Sofiane enter the parking lot of Lincoln Technical Institute (Lincoln) on March 1, 2007. On that day, Lawrence and the defendant traveled to Lincoln where Lawrence was enrolled as a student. The defendant stayed in the automobile. Sofiane then drove into the same parking lot, parking his vehicle near Lawrence's car. Sofiane then drove away but returned about five minutes later. According to the defendant, Sofiane approached the car, lifted his shirt and revealed a firearm and made threats as to both the defendant and Lawrence. He called Lawrence a “bitch” and said he was going to “get her.” The defendant also testified that when Sofiane returned, Sofiane opened the door of the automobile in which the defendant sat and said he was going into the school building to kill Lawrence. As Sofiane walked toward the school and entered the building, the defendant claimed to have followed him and encountered Sofiane coming back out of the door. The defendant also testified that Sofiane spit in his face and grabbed him around the neck while at the same time, “he went for his waistband” where he previously had displayed a gun. The two men then grappled, and, in the defendant's version of events, Sofiane was stabbed with a knife that the defendant had removed from the glove compartment of Lawrence's vehicle. The defendant testified that the stabbing was accidental, but he also testified that he was acting in defense of himself and of Lawrence. The defendant first testified that he did not think he had to stab Sofiane but then said he did so in defense of himself and later said also that he did so in defense of Lawrence because he was afraid of what Sofiane might do to Lawrence and him.

The following aspect of the procedural history is relevant. Citing this court's decision in State v. Darrow, 107 Conn.App. 144, 944 A.2d 984 (2008), and State v. Miller, 55 Conn.App. 298, 739 A.2d 1264 (1999), cert. denied, 252 Conn. 923, 747 A.2d 519 (2000), the defendant claimed entitlement to this defense of others instruction even when the defenses raised might be inconsistent and requested an instruction pursuant to § 2.8–1 of the criminal jury instructions published by the judicial branch.² The trial court did not instruct the jury on the defense of others defense requested. On appeal, neither the defendant nor the state claims that the request was waived. The defendant argues that the court's refusal to give the requested instruction was improper and asks that the judgment of conviction be reversed and that the matter be remanded for a new trial. In response, the state argues that the evidence did not support a defense of others instruction because no rational juror could have found that the defendant acted in defense of Lawrence and that any error in failing to give the requested instruction was harmless.

In reviewing entitlement to a jury instruction on self-defense, defense of others or defense of premises, the reviewing court must view the evidence in the light most favorable to the defendant requesting the charge. State v. Terwilliger, 105 Conn.App. 219, 224 n. 5, 937 A.2d 735 (2008), aff'd, 294 Conn. 399, 984 A.2d 721 (2009).

The defendant's principal claim on appeal is that the trial court erred in failing to instruct the jury on the defense of others under General Statutes (Rev. to 2007) § 53a–19 in accordance with his written request. Specifically, the defendant argues that on the basis of the evidence presented, viewed in the light most favorable to the defendant, a jury reasonably could have found that the defendant was protecting Lawrence when he stabbed Sofiane. In response, the state argues that there is no rational view of the evidence to show that the defendant actually believed that Sofiane was about to use force on Lawrence or that any such belief reasonably would warrant such an instruction. Particularly, the state argues that the defendant's belief that Lawrence was in danger became unreasonable when the defendant viewed Sofiane leaving the building. We agree with the defendant.

The legal principles that are applicable to the defendant's claim are well established. “[T]he fair opportunity to establish a defense is a fundamental element of due process of law.... This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified.... Thus, [i]f the defendant asserts [self-defense] and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to [an] ... instruction [on self-defense].... Before an instruction is warranted, however, [a] defendant bears the initial burden of producing sufficient evidence to inject self-defense into the case.... To meet that burden, the evidence adduced at trial, whether by the state or the defense, must be sufficient [if credited by the jury] to raise a reasonable doubt in the mind of a rational juror as to whether the defendant acted in self-defense.... This burden is slight, however, and may be satisfied if there is any foundation in the evidence [for the defendant's claim], no matter how weak or incredible.... Furthermore, in reviewing the trial court's rejection of the defendant's request for a jury charge on self-defense, we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.” (Citations omitted; internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 810, 717 A.2d 1140 (1998); see also State v. Terwilliger, 294 Conn. 399, 411–12, 984 A.2d 721 (2009).

“The Connecticut test for the degree of force in self-defense is a subjective-objective one. The jury must view the situation from the perspective of the defendant. Section § 53a–19 (a) requires, however, that the defendant's belief ultimately must be found to be reasonable.... Moreover, the evidence must be such that the jury must not have to resort to speculation in order to find that the defendant acted in justifiable self-defense.” (Citations omitted; internal quotation marks omitted.) State v. Lewis, supra, 245 Conn. at 811, 717 A.2d 1140.

“It is true that [i]f the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant...