State v. Cunningham

168 Conn.App. 519

146 A.3d 1029

State of Connecticut

v.James E. Cunningham, Sr.

AC 38322

Appellate Court of Connecticut.

Argued May 23, 2016

Officially released September 27, 2016

Glenn W. Falk, assigned counsel, with whom, on the brief, was John Boeglin, law student intern, for the appellant (defendant).

Ryan Coyne, certified legal intern, with whom were Harry Weller, senior assistant state's attorney, and, on the brief, John C. Smriga, state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).

Sheldon, Prescott and West, Js.

PRESCOTT, J.

The defendant, James E. Cunningham, Sr., appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The defendant subsequently pleaded guilty to a charge of criminal possession of a firearm in violation of General Statutes § 53a-217 (a), as charged in a part B information. On appeal, the defendant claims that the trial court violated his sixth amendment right to present a complete defense to the charge of murder by precluding defense counsel during closing argument from delineating the elements of the lesser included offense of manslaughter in the first degree with a firearm in order to highlight the mental state required for murder.¹ We affirm the judgment.

The jury reasonably could have found the following facts. The victim, Daniel Speller, and the defendant were friends who had lived together for several weeks at a house in Bridgeport. On the night of August 5, 2012, an altercation concerning money arose between the defendant, who was wearing his .45 caliber pistol, and the victim. Sometime after midnight on August 6, the defendant shot the victim three times—in the chest, arm, and leg—outside of the house in which they lived. The fatal shot struck the victim in his chest and caused him to bleed to death within minutes. The defendant then dragged the victim down some porch stairs and enlisted the help of a neighbor to wrap the victim's body in a white tarp and strap it to a metal rack mounted to the back of the defendant's motor vehicle, a Hummer.

The defendant drove the Hummer with the victim's body on it to his grandmother's house, throwing the murder weapon into a nearby river on his way.² When he arrived at his grandmother's house, the defendant drove the Hummer into her backyard and concealed it in a hedge bordering a large, wooded area. At some time during the night, he returned to the Hummer and further covered the victim's body with two plastic garbage bags. Police ultimately discovered the concealed Hummer and the victim's body the next morning, at which point the defendant told the officers, “You got me,” and, “I'm not gonna give you any trouble.”

On August 16, 2013, in a substitute information, the defendant was charged with murder in violation of § 53a-54a (a),³ and carrying a pistol without a permit in violation of § 29-35 (a).⁴ At his jury trial, the defendant admitted that he had shot the victim, loaded him onto the back of his Hummer, thrown the gun into a river, and concealed the victim's body in his grandmother's backyard, but repeatedly testified that he had shot the victim in self-defense. Neither the state nor the defendant requested a jury instruction on any lesser included offense.

The defendant offered two theories of defense: (1) that he had acted in self-defense and (2) that he had not intended to kill the victim, but that he had acted with the requisite mental state for the crime of manslaughter in the first degree.⁵ According to the defendant, the shooting arose out of an altercation he had with the victim concerning money. In the defendant's version of events, the victim attacked him and tried to grab his gun, which fell to the ground. At this point, the defendant was on the ground as the victim kicked him. The defendant reached for the gun and shot at the victim, who proceeded to run away across the street. It was not until the victim was across the street that the defendant noticed that the victim was shot. Thus, according to the defendant, he did not intend to kill the victim and his conduct constituted self-defense.

Defense counsel began his closing argument by arguing that the defendant did not have the requisite intent to kill the victim, but rather acted with the requisite mental state for the crime of manslaughter, recklessness: “If two of us get in an altercation and we're friends and we wrestle or tussle, and there is a gun involved and someone gets shot, it's a manslaughter. The intent isn't to kill your friend, but you're in a fight. If I wait for you outside and you come around the corner, and I am waiting for you and I shoot you, it's a murder. ... And therein lies the issue in this case because he is not charged with manslaughter; he is charged with murder. So, the only issue, the narrow issue, that you have to figure out is what his intent was.” Defense counsel argued that the defendant “didn't intend to kill [the victim]. He intended to get him off of him.”

Later in his closing argument, defense counsel sought to explain to the jury the elements of murder, self-defense, and manslaughter in the first degree by reckless indifference, and to supplement his explanation with a visual presentation listing the elements, as codified by statute, via an overhead monitor. Defense counsel argued to the jury: “I typically during closing argument don't go [into] the law with specificity, but I think in this case it is somewhat important. It will be brief and I'll go through it quickly, and Her Honor will actually direct you on what [that] is. And Her Honor's interpretation and statement of law is what governs this trial, but at the same time I want everyone to understand exactly what it is the state has to prove beyond a reasonable doubt. The first thing—the first count that you are going to consider is the murder count. And what I have done is, I have basically taken what the murder count is. And I'll read it to you because I know from there you really can't see with the overhead [monitor].

* * *

“Now, when we start talking about self-defense, and you have that claim, and you'll have to determine whether or not he used—he was justified in using the force that he used.... And like I said, this thing [on the overhead monitor] was just taken straight from the judge's charge....

“And the last thing I'll read to you because I actually think that it's true during this process, is the manslaughter in the first degree with a firearm. With intent to cause serious physical—”

At this point in the proceedings, the state objected, and the court sustained the objection, although no basis for the objection was stated. Defense counsel did not ask to be heard with respect to the objection or request that the court clarify the scope of its ruling. Rather, he proceeded with his closing argument:⁶ “As I said, manslaughter is something that happens when two people get in an argument, in a fight, a gun is drawn, and someone gets hurt—and friends get hurt, and that is what this case is.

* * *

“[T]here's a reasonable doubt and a reasonable hypothesis between what happened between [the victim and the defendant]. It is reasonable to think they got into an argument and he was shot because he got into an argument. That makes it a manslaughter. Your problem is going to be that you can't find him guilty of manslaughter because the state chose not to charge him, so you're stuck. The state chose not to add lesser includeds, and the state chose not to give you the option of what he is actually guilty of. So, you have to make the tough decision to find him not guilty because you can't find what his intent is.”

In response, the state argued in its rebuttal closing argument that the defendant chased the victim and shot him from behind, and, thus, intended to kill the victim: “First of all, it's murder; it's not manslaughter....

What counsel just told is, my guy is guilty, but what the state charged with was wrong. He didn't intend to kill him. But if you believe that he intended to kill him, we're claiming self-defense. Does that make sense?⁷ It's manslaughter, but if you don't find it is manslaughter, then here is a defense I can use—it's self-defense ....

“The state proved murder, not manslaughter. He intended to kill him. That is what the intent is of firing a .45 caliber handgun at somebody. Your intent was not to warn him.” (Footnote added.)

After closing argument, the court elaborated on its ruling outside the presence of the jury: “There was only one objection during the defense's argument, and that was to a—so, there is a record of it. Counsel put up on the screen a slide with the elements of the offense of manslaughter in the first degree by reckless indifference. I sustained the objection. That is not appropriate.

“In this case neither side requested a lesser included offense charge. Typically, those requests come from the defense and not the state, and the defense didn't request it. It would be confusing to the jury and completely inappropriate to instruct them on the elements of an offense which has not been charged. And so those are the reasons why I sustained the objection on that ground.

“Now, I understand the defense may not have wanted a lesser included and to give the jury that option, and that is your call, strategically. But you can't be instructing them about something that is not part of this case and has not been charged or an element of this offense. So, for those reasons, I sustain the objection.” The defendant did not take further action with respect to the court's ruling or seek to have the slide that listed the elements of manslaughter marked for identification.

Following the court's elaboration, the jury began deliberating, and on August 23, 2013, found the defendant guilty of both counts. The defendant subsequently pleaded guilty to criminal possession of a firearm in...