State v. Carlson

318 A.3d 283

226 Conn.App. 514

STATE of Connecticut

v.Kristopher CARLSON

(AC 45883)

Appellate Court of Connecticut.

Argued February 8, 2024

Officially Released July 2, 2024gtybvgh

Erica A. Barber, assistant public defender, for the appellant (defendant).

Danielle Koch, assistant state’s attorney, with whom, on the brief, were John Doyle, state’s attorney, Seth Garbarsky, supervisory assistant state’s attorney, and Jason Germain, senior assistant state’s attorney, for the appellee (state).

Cradle, Seeley and Westbrook, Js.

SEELEY, J.

[1] ₅₁₅The defendant, Kristopher Carlson, appeals from the judgment of conviction, rendered following a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a–55 (a) (1). On appeal, the defendant raises multiple claims concerning ₅₁₆the trial court’s jury instructions on consciousness of guilt.¹ Specifically, the defendant claims that (1) the instruction diluted the state’s burden to disprove the elements of self–defense beyond a reasonable doubt, (2) in a selfdefense case, a consciousness of guilt instruction improperly burdens the defendant to explain his conduct in violation of his constitutional right not to testify, (3) the instruction was unwarranted based on the evidence presented at trial, (4) the jury was misled by the instruction,² and (5) this court should exercise its supervisory pow- ers and adopt a rule categorically prohibiting consciousness of guilt instructions. We conclude that the court did not err by giving a consciousness of guilt instruction and decline to adopt a rule prohibiting such an instruction. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of January 16, 2021, the defendant went to Corner Cafe, a bar in Wallingford, with his father, David Carlson. At some point in the evening, the defendant’s father left, but the defendant remained at the bar. In addition to the defendant and other ₅₁₇Patrons, present at the bar were Rebecca Souza, the bartender; Jessica Falcone, a friend of Souza; Gene DelGreco, a regular customer and an acquaintance of both Souza and Falcone; and the victim, Ernest Cipolli III, who was in a romantic relationship with Souza. The bar had a closing time of 10 p.m. due to the COVID–19 restrictions in place at that time. At some time after 9:30 p.m., Souza announced "last call," which signaled to the patrons that the bar would be closing soon. Around 10 p.m., Souza informed the remaining customers that it was closing time and asked them to leave the premises. Some of the customers, including Falcone, DelGreco, the defendant, and the victim, remained.

The victim was irritated with the defendant for his continued presence at the bar, believing that the defendant had been flirting with Souza. The victim also seemed irritated with Souza for not forcing the defendant to leave more promptly. As a result, there was a verbal confrontation between the defendant and the victim inside the bar, in the presence of Souza, Falcone, and DelGreco, in which the victim approached the defendant, asked him who he was and told him to leave the bar. Souza told the victim to sit down and the defendant not to pay attention to the victim because he was jealous. Nevertheless, the victim told the defendant to leave, while pointing at the exit. A surveillance video from inside the bar shows that, after this confrontation, at approximately 10:03 p.m., DelGreco physically escorted the defendant out of the bar. There was no physical contact between the defendant and the victim at that time.

After the defendant left the bar with DelGreco, Falcone subsequently went outside to the parking lot to check on the defendant, who was seated in his vehicle. He seemed annoyed and stated to Falcone that, if the victim wanted to fight, he would "call [his] boys." Thereafter, Falcone went back inside the bar. The victim, ₅₁₈meanwhile, appeared agitated, stepped outside the bar to smoke a cigarette at approximately 10:07 p.m. and then went back inside, where he and Souza had an "emotional conversation."

At around 10:12 p.m., Falcone again went outside to the parking lot of the bar where she met with DelGreco, at which time the defendant was still inside his vehicle in the parking lot. At approximately 10:16 p.m., the victim exited the bar and walked over to the area of the parking lot where DelGreco and Falcone were both seated in their respective vehicles and were having a conversation through their unrolled car windows. The victim, Falcone, and DelGreco had a brief conversation, during which Falcone observed that the victim seemed agitated and informed the victim that she had told the defendant to leave. The victim thereafter went back inside the bar around 10:18 p.m.

At approximately 10:22 p.m., the victim exited the bar a final time and approached the defendant’s vehicle. Falcone and DelGreco were still engaged in a conversation through their unrolled car windows. Falcone, concerned about the potential for further conflict between the victim and the defendant, exited her vehicle, approached the defendant’s vehicle and stood next to the victim. A surveillance video from outside the bar shows that the victim banged on or punched the defendant’s vehicle at least once. DelGreco also exited his vehicle and approached the defendant’s vehicle. A physical altercation followed, in which the defendant was trying to open the door to his vehicle and the victim kept pushing it shut.

Falcone, who had been attempting to deescalate the altercation, observed the defendant lean over and grab something from underneath the passenger seat in his vehicle. Afraid that the defendant had a firearm, Falcone told the victim, who was unarmed, that the defendant ₅₁₉had a gun. The defendant, who actually was retrieving a knife that he kept stored in his car, thereafter exited his vehicle. Falcone and DelGreco attempted to separate the victim and the defendant, but the victim moved toward the defendant and the defendant struck the victim in the arm.³

The victim then began running away from the defendant, who chased him approximately ninety feet toward the door of the bar. The victim attempted to open the door, but it was locked.⁴ The defendant caught up with the victim at the door and stabbed him twice in the chest with the knife.⁵ At the time the defendant stabbed the victim, the victim had his hands in the air, which is supported by the documented injuries to the victim’s hands.⁶ The defendant then ran back to his vehicle and quickly left the scene, driving over the curb at the edge of the parking lot in the process. Thereafter, Falcone banged on the bar door, and, after Souza opened it, Falcone instructed Souza to call 911. Police and emergency medical personnel arrived shortly after and attempted to administer aid to the victim. The medical personnel transported the victim by ambulance to a hospital where he died later that evening.

₅₂₀In the hours following the victim’s death, police officers went to the home of the defendant’s father in Wallingford. The defendant’s father called the defendant, who agreed to come to the house and speak to the officers. When he arrived, the defendant was wearing different clothes from what he was wearing in the surveillance video obtained from the bar on the night of the stabbing.⁷

The defendant agreed to an interview with the police at the police station, which was recorded. In the interview, the defendant told the police that the victim had been punching the driver’s side window of his car and that he had to use a folding knife he kept in his vehicle to defend himself from the victim. The defendant told the police that he did not know where the knife was but that it may have been left at the scene.⁸ The defendant also told the police that when he left the bar after the stabbing he drove directly to his girl- friend’s house in New Britain and that he left the clothes that he had been wearing during the altercation at his girlfriend’s house.

Tracking data later obtained from the defendant’s cell phone showed that the defendant did not drive directly to his girlfriend’s house in New Britain but, instead, that he had first driven to his mother’s house in Meriden, then to a house in New Britain, and finally to his father’s house to speak with the police officers. The day after the incident, the police obtained a search warrant for the defendant’s mother’s house. During the execution of the search warrant, the officers seized the clothes and shoes that the defendant had been wearing during the stabbing at the bar. The defendant’s clothes were damp, smelled of detergent, and had been laid ₅₂₁out on the bed by someone. The shoes appeared to have been washed as well, but a "bloodlike stain" remained. The defendant was subsequently arrested and charged with murder in violation of General Statutes § 53a-54a (a).

At trial, the defendant pursued the theory that the victim was the initial aggressor and that he had killed the victim in self- defense. After the close of evidence, the parties participated in a charge conference with the court that was held in chambers, which the court memorialized on the record the following day. The state had submitted a request for an instruction on consciousness of guilt, to which the defendant objected, arguing that it would be "inappropriate in this case where the defense is justification, it’s a self-defense case, there’s an instruction of self-defense, to indicate that flight or any other behavior is … evidence of consciousness of guilt I think jumps over the issue of justification."⁹

The court, Vitale, J., overruled the defendant’s objection, stating that it "concluded that the record demonstrated sufficient evidence that had been introduced to permit … that instruction be given. So, I want to just note in connection with the claims [made by the defendant] … that the evidence related to consciousness of guilt concerns not only what the state alleges...