State v. Dunstan, 33789.

145 Conn.App. 384

74 A.3d 559

STATE of Connecticut

v.Donna DUNSTAN.

No. 33789.

Appellate Court of Connecticut.

Argued May 30, 2013.

Decided Sept. 3, 2013.

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

Emily Graner Sexton, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Cathryn J. Krinitsky, senior assistant state's attorney, for the appellee (state).

GRUENDEL, ALVORD and FOTI, Js.

FOTI, J.

The defendant appeals from the judgment of conviction, rendered following a jury trial, of two counts of assault of a public safety officer in violation of General Statutes § 53a–167c (a)(1), two counts of interfering with an officer in violation of General Statutes § 53a–167a, and one count of breach of the peace in the second degree in violation of General Statutes § 53a–181 (a)(1). On appeal, the defendant claims that the court (1) improperly rejected her request to charge the jury regarding her right to protect herself against an officer's unlawful use of force, (2) improperly declined to instruct the jury on the charge of interfering with a police officer as a lesser included offense, (3) unconstitutionally enlarged the offenses of assault of a public safety officer through its supplemental charge on causation, (4) improperly merged the conviction on count four, with count two, as a lesser included offense, and (5) abused its discretion by denying her application for accelerated rehabilitation. We affirm in part and reverse in part the judgment of the trial court.

Shawn Ware, a Hartford police officer, was assigned to direct traffic for construction workers at a site in Hartford on June 22, 2010. While directing traffic, Ware paused to provide directions to a driver. During this time, the defendant, a passenger in the car immediately behind the vehicle receiving directions, continually sounded her car's horn and loudly yelled obscenities from the passenger window. After the first car drove away, Ware directed the driver of the second car to pull over and approached the passenger side of the vehicle in order to arrest the defendant.

Ware asked the defendant her name ¹ and directed her to exit the vehicle. The defendant refused to comply and locked the passenger door. When the driver unlocked the car doors, Ware opened the passenger door and placed himself between the open door and the defendant. The defendant attempted to pull the door closed, hitting Ware in the process. Ware then sprayed one burst of oleoresin capsicum (pepper spray) toward the defendant's face. When Ware began to remove the defendant from the vehicle, she started swinging at Ware and punching his upper body. Once outside of the vehicle, the defendant continued swinging and kicking at Ware, punching his upper body and kicking his legs. During the altercation, Ware sprayed the defendant with pepper spray a second time and called for assistance.

Sergeant Edward Yergeau was the first officer to respond to the scene. Yergeau observed Ware defending himself against a woman who was striking him in the upper torso while loudly screaming expletives. After the defendant refused to comply with Yergeau's verbal commands to lie on the ground, he struck the defendant several times on her back with his baton. When the defendant continued struggling with the officers, Yergeau grabbed her arm and eventually kicked her legs out from under her, forcing the defendant to the ground. In the process, the defendant twisted her body and slammed into Yergeau while trying to escape from his grasp. A third police officer, Brian Bishop, arrived on the scene shortly thereafter and helped the other two officers gain control of the defendant and place her under arrest. Ware and Yergeau were injured during the altercation with the defendant. Ware suffered bruising on his arms and chest while Yergeau suffered a torn rotator cuff.

The jury found the defendant guilty on all counts. The trial court merged the conviction on the fourth count of interfering with an officer with the second count of assault of a public safety officer and sentenced the defendant to a five year term of imprisonment, execution suspended after one year, and four years of probation.² This appeal followed. Additional facts are set forth as necessary.

I

The defendant first claims that the court improperly rejected her request to charge the jury regarding her right to protect herself against the unlawful use of physical force, thereby violating her right to due process. According to the defendant, the court's failure to fully instruct on General Statutes § 53a–22 improperly relieved the state of its burden to prove all elements of the crimes of assault of a public safety officer and interfering with an officer. ³ We are not persuaded. The following facts are necessary to our resolution of this issue.

The defendant submitted proposed jury instructions pertaining to the assault charge that, in part, instructed the jury that the state must prove beyond a reasonable doubt that the officer actually believed that she committed an offense and the degree of force used was necessary, and that these beliefs were reasonable. The proposed instructions also provided that “[t]he evidence in this case raises the defense that the [officers] were not justified in the degree of physical force used in making an arrest.... [I]f you find that the state has proved each element of [a]ssault on a [p]eace [o]fficer ... you must go on to consider whether or not the [officers] were justified in their use of force.... [T]he state must not only prove beyond a reasonable doubt all the elements of the crime charged to obtain a conviction, but must also disprove beyond a reasonable doubt that the defendant was justified in her use of force.”

The court declined to give the requested charge and included the standard instructions, which require the jury to find that the force used by the police was reasonably necessary under the circumstances. The court concluded that the standard instruction would be sufficient and fair to the defendant, noting that the defendant's proposed instruction would be more appropriate in a case in which affirmative evidence or witness testimony was presented regarding claims of police assault or excessive use of force.

As a preliminary matter, we set forth the standard of review and legal principles that will guide our analysis. “Our review of the defendant's claim requires that we examine the [trial] court's entire charge to determine whether it is reasonably possible that the jury could have been misled by the omission of the requested instruction.... While a request to charge that is relevant to the issues in a case and that accurately states the applicable law must be honored, a [trial] court need not tailor its charge to the precise letter of such a request.... If a requested charge is in substance given, the [trial] court's failure to give a charge in exact conformance with the words of the request will not constitute a ground for reversal.... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Stovall, 142 Conn.App. 562, 577, 64 A.3d 819, cert. granted on other grounds, 309 Conn. 917, 70 A.3d 40 (2013). “An error in instructions in a criminal case is reversible error when it is shown that it is reasonably possible for errors of constitutional dimension or reasonably probable for nonconstitutional [improprieties] that the jury [was] misled.” (Internal quotation marks omitted.) State v. Kurrus, 137 Conn.App. 604, 609, 49 A.3d 260, cert. denied, 307 Conn. 923, 55 A.3d 566 (2012).

Our Supreme Court has determined that in a case in which a defendant is charged with assault of a peace officer or interfering with an officer, in lieu of a self-defense instruction, the court must provide “a detailed instruction that the state must establish that the police officer had been acting in the performance of his duty and that a person is not required to submit to the unlawful use of physical force during the course of an arrest....” State v. Davis, 261 Conn. 553, 571, 804 A.2d 781 (2002). This court has further concluded that an officer's exercise of reasonable force is inherent in the performance of duties, and therefore unreasonable and unnecessary force by a police officer would place the actions outside the performance of that officer's duties. State v. Baptiste, 133 Conn.App. 614, 627, 36 A.3d 697, cert. granted on other grounds, 304 Conn. 921, 41 A.3d 661 (2012); ⁴State v. Salters, 78 Conn.App. 1, 5–6, 826 A.2d 202, cert. denied, 265 Conn. 912, 831 A.2d 253 (2003). Whether an officer is acting in the performance of his duties “is ultimately a factual question to be determined by the jury, taking into account all of the circumstances of the case....” State v. Davis, supra, at 572, 804 A.2d 781.

The defendant cannot prevail on her claim of instructional error. In the present case, the court instructed on more than one occasion that the state bears the burden of proof to establish each element of assault and interference beyond a reasonable doubt, including the element of “in the performance of his duties....” When charging the jury on the element of “in the performance of his duties,” the court instructed the jury that it must necessarily consider the law that justifies an officer's use of physical force in effectuating an arrest.⁵ In fact, the court specifically instructed:“If you find that ... the force used by the officer was not reasonable, you will find that the officer was not acting within the performance of his official duties....” (Emphasis added.) See State v. Baptiste, supra, 133 Conn.App. at 627, 36 A.3d 697;State v. Salters, supra, 78 Conn.App. at 5–6, 826 A.2d 202. The court's instructions drew the jury's attention to the fact that it must...