State v. Darryl W.

303 Conn. 353

33 A.3d 239

STATE of Connecticut

v.DARRYL W.

No. 18396.

Supreme Court of Connecticut.

Argued Sept. 21, 2011.Decided Jan. 10, 2012.

Annacarina Jacob, senior assistant public defender, for the appellant (defendant).

Melissa L. Streeto, assistant state's attorney, with whom, on the brief, was John A. Connelly, former state's attorney, Maureen Platt, state's attorney, and John Davenport, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN, HARPER and VERTEFEUILLE, Js.^*HARPER, J.

The defendant, Darryl W.,¹ appeals directly to this court, pursuant to General Statutes § 51–199(b)(3), from the judgment of conviction, rendered after a jury trial, of criminal attempt to commit aggravated sexual assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–70a (a)(1),² sexual assault in the third degree in violation of General Statutes § 53a–72a (a)(1)(B) and kidnapping in the first degree with a firearm in violation of General Statutes § 53a–92a.³ The defendant also appeals from the trial court's judgment finding him guilty of violation of probation based on his conviction of the aforementioned criminal offenses. The defendant raises two issues on appeal. He claims first that the trial court improperly instructed the jury regarding the elements of §§ 53a–70a (a)(1) and 53a–92a and regarding his affirmative defense to § 53a–92a under General Statutes § 53a–16a.⁴ This claim specifically concerns the legal standards for determining whether a weapon may be considered operable under these statutes.⁵ The defendant also claims that certain improper comments by the senior assistant state's attorney during closing argument deprived him of his right to a fair trial. We conclude that the defendant failed to preserve his jury instruction claim and is not entitled to review on any basis asserted. We further conclude that there was no prosecutorial impropriety. Accordingly, we affirm the judgments.

The record reveals the following procedural history and facts as the jury reasonably could have found them. The defendant is married to the sister of the victim, D. Following the loss of her house due to foreclosure, D, along with her husband and two children, resided with the defendant, his wife and their four children for several months. D and her family then moved out of the defendant's house to live with her parents and subsequently began looking for a house to buy. On the day of the incident, the defendant tricked D, whom he had offered to help find a house, into meeting him alone at a commuter parking lot in Waterbury and driving with him to his house. When they arrived, the defendant asked D to help carry a box into the house. Once inside, he held D at gunpoint, handcuffed her and brought her to a bedroom. There, he removed her pants, placed duct tape over her mouth, kissed her breasts, touched her vagina, briefly tied her feet to a bed, removed his pants and climbed on top of her. The defendant stopped short of intercourse, saying he “couldn't do this,” and subsequently agreed to let D leave after she brought him back to his vehicle in the commuter lot.

The gun that the defendant used was an air pistol that the police later seized in a search of a vehicle belonging to the defendant. The pistol was designed to shoot BBs propelled by compressed carbon dioxide, or CO2. At the time the police seized it, the pistol contained neither BBs nor a CO2 cartridge, but a later test confirmed that it was capable of firing when equipped with BBs and a cartridge.

At trial, the defendant testified that he and D had previous romantic encounters and that on the day in question they engaged in consensual intimate activity but stopped after deciding that doing so was wrong. The defendant also sought to show that the seized air pistol was not on his person at the time of the incident but had in fact been stored in his vehicle for several months. In the alternative, for purposes of the charge of kidnapping in the first degree with a firearm, he asserted an affirmative defense that, even if he had been armed with the air pistol, it was inoperable.

Pursuant to the amended information that the state filed after the close of its case, the trial court instructed the jury that it did not need to find that the defendant actually possessed an operable pistol to convict him on the kidnapping and aggravated sexual assault charges, which required only that he represented by words or conduct that he possessed such a weapon. The court further instructed the jury, pursuant to the defendant's affirmative defense, that it should acquit him of the kidnapping charge if it found that he proved the air pistol was not operable.⁶ The jury returned a verdict convicting the defendant on all counts.⁷ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant raises two related claims with respect to the jury instructions regarding the pistol's operability for purposes of aggravated sexual assault in the first degree under § 53a–70a (a)(1) and kidnapping in the first degree with a firearm under § 53a–92a. First, he claims that the trial court improperly failed to instruct the jury that the state bore the burden of proving operability as an element of each of these offenses. Second, he claims that the trial court improperly failed to instruct the jury that he could prove inoperability for purposes of his affirmative defense to § 53a–92a by showing either that the pistol did not contain BBs and therefore was not loaded or that it did not contain a CO2 cartridge and, therefore, lacked a component necessary for discharging a shot.

To support this claim, the defendant proposes a statutory gloss that relies on mutually reinforcing interpretations of the offenses and of the affirmative defense to § 53a–92a. He contends that the language of the two substantive offenses, though ambiguous, should be read to require the state to prove that the defendant actually was armed with a pistol and that he therefore could not properly be convicted for only representing that he possessed one. ⁸ He suggests that allowing conviction merely for claiming to have a gun would produce the absurd result that § 53a–16a would potentially provide an affirmative defense against § 53a–92a for a defendant armed with a nonfunctional pistol but not for one with no pistol at all. The defendant further contends that the affirmative defense under § 53a–16a, the text of which he claims is also ambiguous, should be interpreted in this statutory scheme to preclude conviction—even once the statutory definition of “firearm” has been met—if a defendant can show that the firearm was not loaded and, therefore, not capable of discharging a shot.⁹

The defendant contends that he preserved both objections but, in the alternative, he seeks Golding review ¹⁰ as to the first claim and plain error review as to the second claim. We conclude that the defendant has preserved neither claim, that his first claim cannot succeed under Golding because it has been waived and that the second claim does not merit reversal for plain error.

The record reveals the following additional facts and procedural history relevant to these claims. After the close of its case, the state sought to amend the information with respect to § 53a–92a, kidnapping in the first degree with a firearm. The proposed substitute information replaced an allegation that “during the commission of said crime [the defendant] was armed with and represented by his words or conduct that he possessed a pistol”; (emphasis added); with the narrower charge that “during the commission of said crime he represented by his words or conduct that he possessed a pistol,” thereby avoiding the need to prove the defendant was armed with an operable pistol. The defendant objected, arguing that the amended count would prejudicially preclude him from raising an affirmative defense under § 53a–16a that any pistol he may have possessed was “not a weapon from which a shot could be discharged....” The trial court, citing this court's decision in State v. Hawthorne, 175 Conn. 569, 402 A.2d 759 (1978), ruled that the defendant still could raise this affirmative defense even though the state did not allege that he was armed with a pistol.¹¹ On the basis of this ruling, the defendant withdrew his objection. The court then confirmed that, with respect to the charge of attempted aggravated sexual assault in the first degree under § 53a–70a (a)(1), the state was “also simply claiming that [the defendant] represented by his words or conduct that he had a deadly weapon.” The defendant raised no objection and acknowledged that no affirmative defense applied to this count.

Shortly thereafter, while discussing a motion for a judgment of acquittal filed by the defendant, the trial court expressed its understanding that under the amended charges “the state no longer has the burden to show operability.” The defendant replied, “I would not disagree with that.” He argued instead that because there was no evidence that the pistol contained a CO2 cartridge, his own burden of showing inoperability for purposes of his affirmative defense under § 53a–16a had been met. The court denied his motion.

Following the conclusion of evidence, the trial court provided counsel with copies of a draft jury charge. Per the defendant's request, that charge included an affirmative defense to the kidnapping charge and definitions of the terms “firearm,” “deadly weapon” and “pistol,” which the trial court drew from the relevant statutory text and Penal Code definitions.¹² The next morning, the court held a charging conference. The defendant expressed his satisfaction with the proposed instructions.

In his closing argument, the defendant contended that for the pistol to be operable, it required both BBs and a CO2 cartridge. He then distinguished between the BBs and the cartridge,...