State v. Dupree

56 Conn. App. 631

745 A.2d 832

STATE OF CONNECTICUT v. LAMAR DUPREE

(AC 17583)

Appellate Court of Connecticut.

Argued October 25, 1999.

Officially released February 15, 2000.

Foti, Mihalakos and Healey, Js. Louis S. Avitabile, special public defender, for the appellant (defendant).

Toni Smith-Rosario, deputy assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Terence Mariani, assistant state's attorney, for the appellee (state).

Opinion

HEALEY, J.

The defendant, Lamar Dupree, was charged in a two count information with the crimes of assault in the first degree in violation of General Statutes § 53a-59 (a) (4) in the first count and assault in the first degree in violation of § 53a-59 (a) (1)¹ in the second count. After a jury trial, the defendant was found not guilty under the first count, but guilty under the second count of the lesser included offense of assault in the second degree in violation of General Statutes § 53a-60 (a) (2).² On appeal, the defendant claims that the trial court improperly refused his request to charge the jury on the lesser included offense of criminally negligent assault in the third degree in violation of General Statutes § 53a-61 (a) (3).³ We affirm the judgment of the trial court.⁴

The following facts and procedural history are relevant to our disposition of this appeal. The defendant filed his brief in this court on January 13, 1998. Thereafter, on December 11, 1998, the state filed a motion for permission to file a motion for rectification with respect to three issues. See Practice Book § 66-5, formerly § 4051. Subsequent to briefs being filed, this court denied the state's motion as to the first issue, but granted it as to the second and third issues.⁵ On March 5, 1999, the state filed a revised motion for rectification on the two issues granted by this court.

Subsequently, the trial court filed its decision granting the state rectification on the two issues involved. Of the two issues on which the trial court granted rectification, only the first issue is relevant to the disposition of this appeal. See footnote 5. In its rectification on this issue, the trial court stated, inter alia, that "[t]he basis of the court's denial of the defendant's request to charge on assault in the third degree under General Statutes § 53a-61 (a) (3) was the defendant's failure to disclose, in advance of closing arguments, that he would be filing a written request to charge on that subject. He was ordered by the court to do so."⁶

Before proceeding further, it is necessary to set out additional circumstances that are germane to our discussion and analysis of the defendant's appeal. On the morning of May 14, 1997, the state rested its case-inchief prior to the lunch break. The defendant then made his motion for judgment of acquittal on both counts of the substitute information. The trial court denied the motion. Thereafter, the defendant presented Kevin Wilson as a witness. After Wilson had completed his testimony, the jury was excused for lunch and left the courtroom. Immediately thereafter, the following colloquy took place:

"The Court: Are we having evidence at 2 o'clock, or are we having argument at 2 o'clock?

"[Defense Counsel]: Well, I think we have to discuss the charge first, you know. Are we going to—

"The Court: Pardon me?

"[Defense Counsel]: You're going to have to discuss the charge first.

"The Court: Well, if you—I'll say it again. If you have any charges you want, you have to give them to me. Or if you want any charges for me not to give, you've got to tell me that. I'm not going to have a charging conference on this case that's going to—

"[Prosecutor]: I'm asking for a charge on assault in the second degree.

"The Court: Well, you get it to me; you give me what you want.

"[Prosecutor]: You want me to give it to you?

"The Court: Yep.

"[Prosecutor]: Okay.

"The Court: You've got time now over the lunch hour. "[Defense Counsel]: I would probably be presenting [Thomas] Nalband⁷ at 2 o'clock if he's available, Your Honor.

"The Court: At 2 o'clock?

"[Defense Counsel]: Two o'clock, yeah.

"The Court: He's the public defender?

"[Defense Counsel]: Yes, across the street.

"The Court: All right, we'll continue with evidence at 2:10 p.m. I'm going to request both of you to give me for tomorrow morning full charges, full requests to charge tomorrow morning."

After the recess and in the absence of the jury, the defendant renewed his motion for acquittal and the court again denied it. The following colloquy then took place:

"The Court: All right. We note that you've rested, and same ruling on the motions for judgment of acquittal. The state have anything?

"[Prosecutor]: No, Judge. I just wanted to put on the record ... what we discussed in chambers, that I am going to be arguing in accordance with State v. Woods [25 Conn. App. 275, 280-81, 594 A.2d 481, cert. denied, 220 Conn. 923, 598 A.2d 365 (1991)], just so the defense can't claim surprise, that you've agreed to give a charge in accordance with that case, which says that the skin on a human being constitutes a bodily organ in terms of proving assault in the first degree. And also that we discussed self-defense, and there is going to be a self-defense charge.

"The Court: Are you going to argue self-defense, [defense counsel]? "[Defense Counsel]: It's going to be one of my many arguments, yes, Your Honor.

"The Court: Okay. I just want to make sure you're arguing it so we don't—

"[Defense Counsel]: Yes.

"The Court:—we don't bring that in if we're not going to—you are?

"[Defense Counsel]: Yes.

* * *

"[Prosecutor]: Are you entertaining the thought of giving the charge today?

"The Court: No. No."

The jury then returned to the courtroom and the defense rested. Both the state and the defense presented their final arguments. The court then excused the jury, telling them to report at 10 a.m. the following day.

After the jury left, the following colloquy occurred:

"[Defense Counsel]: What time are we meeting tomorrow, Your Honor, for the charge?

"The Court: Nine o'clock.

"[Defense Counsel]: Nine o'clock?

"The Court: Nine o'clock, ten after, five after nine?

"[Prosecutor]: Yeah, I thought it was pretty much settled. I mean there's nothing to go over, right? We're going to get the assault under the one subsection.

"[Defense Counsel]: Well, if we have any requests to charge they should be submitted by tomorrow morning. "The Court: Yeah, they should be there by 9 o'clock so that I can get a chance to look at them and evaluate them, all right?

"[Prosecutor]: Sure. But I mean there's nothing new that's coming up that I know of, right?

"[Defense Counsel]: I don't know.

"The Court: Okay. But I just want—I don't want to charge the jury and then come out and say, oh, really what I wanted you to say was this, too.

"[Prosecutor]: I understand.

"The Court: So if there's anything special, get [it] to me. Anything you don't want said, get it to me. You've had a peek at—you know what I'm going to say. Okay. We'll adjourn court, then, until 10 o'clock tomorrow morning. Thank you."

On the next day, May 15, 1997, the state filed a request to charge on assault in the second degree, § 53a-60 (a) (1), as a lesser included offense of assault in the first degree, § 53a-59 (a) (1). The defendant filed several requests to charge, including one on assault in the third degree, § 53a-61. The court's instructions included one on assault in the second degree but did not include one on assault in the third degree.

After the court's instructions, the defendant took exception to the failure of the court to instruct on assault in the third degree. At that time, the following colloquy occurred:

"[Defense Counsel]: ... Finally, number ten, I requested the court charge on criminally negligent assault in the third degree ... as a lesser offense, which the court did not give. I take exception to the court's failure to charge on criminally negligent assault in the third degree as a lesser offense under the circumstances of this case as indicated in the request to charge. And by the law under State v. Smith [185 Conn. 63, 76-79, 441 A.2d 84 (1981)].

"The Court: All right. The exceptions are noted. I'll just comment on one of them, and that was the request regarding the prior incarceration of the defendant.... Okay. You want to take a look—

"[Prosecutor]: Can I respond to that, or is that inappropriate?

"The Court: If you'd like to.

"[Prosecutor]: ... And as to the lesser included offenses, the court made it clear to myself and to defense counsel on a number of occasions that if we wanted charges on lesser included offenses, we should have requested those yesterday. At least that was my understanding.

"[Defense Counsel]: Your Honor gave us till this morning to file official requests to charge. I would not agree to going to argument yesterday if the court had not given us that position. I note that [the prosecutor] got a charge on assault in the second degree wherein... he did not make an offer under the proper form of the Practice Book. He did not cite facts, and he did not lay out the charge for the court. I laid out the charge for the court, and I recited what facts distinguished the mental state between intent to cause serious physical injury and criminally negligent mental state, if the court pleases, for the record.

"The Court: Did you argue assault [in the second degree] to the jury?

"[Defense Counsel]: No, I didn't argue assault [in the second degree].

"[Prosecutor]: Well, I made the decision and got the court's approval on getting the charge on assault in the second degree prior to my argument. "The Court: To argument, right.

"[Prosecutor]: And one of the problems the state feels it would have been prejudiced by allowing the charge on assault in the third degree because I never even had an opportunity to address that in my closing argument; and I don't recall...