State v. King

STATE v. KING

SC19339

Supreme Court of Connecticut

May 3, 2016

DISSENT

ROBINSON, J., with whom PALMER and McDONALD, Js., join, dissenting. I respectfully disagree with the majority's decision to reverse the judgment of the Appellate Court, which had overturned the convictions of the defendant, Robert King, of two counts of intentional and reckless assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (3),¹ on the ground that they were based on a legally inconsistent verdict that did not reflect the theory of the case that the prosecutor had presented to the jury at trial. State v. King, 149 Conn. App. 361, 373-76, 87 A.3d 1193 (2014). Our recent decision in State v. Nash, 316 Conn. 651, 665-69, 114 A.3d 128 (2015), constrains me to agree with the majority's ultimate conclusion in part I of its opinion that the defendant's convictions for both intentional and reckless assault are—at least conceptually—not legally inconsistent under the state's theory of the case that was presented at trial,² namely, that the defendant stabbed the victim, Kristen Severino, four times in a single episode when she interfered in a fight between the defendant and her friend, Kyle Neri, over a $10 debt.³ I nevertheless disagree with part II of the majority's opinion, which concludes that the convictions for both intentional and reckless assault did not violate the defendant's due process right to notice under the theory of the case principles articulated in Dunn v. United States, 442 U.S. 100, 106, 99 S. Ct. 2190, 60 L. Ed. 2d 743 (1979), and State v. Robert H., 273 Conn. 56, 82-83, 866 A.2d 1255 (2005). I agree with the defendant's claim that the record, and in particular the prosecutor's closing and rebuttal arguments, demonstrates that the state presented its case to the jury in a manner that hedged its bets with respect to the defendant's mental state, and did not contemplate obtaining convictions for both intentional and reckless assault. Like the Appellate Court, I conclude that the convictions of both intentional and reckless assault ran afoul of due process principles holding that "an appellate court cannot affirm a conviction on the basis of an argument newly fashioned after conviction and not presented at trial." State v. King, supra, 373. Because I would affirm the judgment of the Appellate Court, I respectfully dissent.

I agree with the background facts and procedural history stated by the majority and I need not repeat them in full here. I also agree with the majority's general recitation of the applicable constitutional principles governing the due process issue in this appeal, namely, whether the defendant received constitutionally adequate notice under Dunn v. United States, supra, 442 U.S. 106, that the state sought to convict him of both reckless and intentional assault. In principles first articulated in the context of sufficiency of the evidence claims,⁴ we have emphasized the "important doctrine" precluding the state from "chang[ing] the theory of the case on appeal." State v. Robert H., supra, 273 Conn. 82. "The 'theory of the case' doctrine is rooted in principles of due process of law. . . . In Dunn, the United States Supreme Court explained: 'To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. Few constitutional principles are more firmly established than a defendant's right to be heard on the specific charges of which he is accused.' . . . The court further stated that 'appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial.' . . . Subsequently, in Chiarella v. United States, 445 U.S. 222, 237 n.21, 100 S. Ct. 1108, 63 L. Ed. 2d 348 (1980), the United States Supreme Court observed that an isolated reference at trial to the theory of the case advanced on appeal is constitutionally insufficient to sustain a conviction on appeal.

"The [United States] Court of Appeals for the First Circuit applied the Dunn principles in Cola v. Reardon, 787 F.2d 681 (1st Cir.), cert. denied, 479 U.S. 930, 107 S. Ct. 398, 93 L. Ed. 2d 351 (1986), a federal habeas action . . . . In Cola, there was evidence in the record that would have been sufficient to sustain the petitioner's conviction, but the Court of Appeals held that the state appellate court should not have considered that evidence in support of the conviction because it was not part of the state's theory of the case at trial. . . . In reaching that result, the Court of Appeals interpreted Dunn and its progeny as follows: '[I]n order for any appellate theory to withstand scrutiny under Dunn, it must be shown to be not merely before the jury due to an incidental reference, but as part of a coherent theory of guilt that, upon [review of] the principal stages of trial, can be characterized as having been presented in a focused or otherwise cognizable sense.' . . . We conclude that this statement is an accurate synthesis of Dunn and Chiarella. We therefore adopt it as the standard by which to gauge whether evidence introduced at trial, but not relied on by the state in its legal argument, is properly cognizable by an appellate court when evaluating the sufficiency of the evidence." (Citations omitted; emphasis added.) State v. Robert H., supra, 273 Conn. 82-83. In evaluating whether a coherent theory of guilt is properly before the jury during the principal stages of the trial, we conduct a wide-ranging review of the charging instrument, the jury instructions, witness examinations, and the prosecutor's factual and legal arguments, such as summations and responses to dispositive motions. See, e.g., Cola v. Reardon, supra, 693-94; State v. Carter, 317 Conn. 845, 854-55, 120 A.3d 1229 (2015); State v. Fourtin, 307 Conn. 186, 208-209, 52 A.3d 674 (2012); see also footnote 9 of this dissenting opinion.

I respectfully disagree with the majority's conclusionthat the state tried this case in a way that apprised the defendant that the state intended to obtain convictions for both reckless and intentional assault. See State v. Nash, supra, 316 Conn. 666-67 ("[i]n light of the state's theory of the case, there was nothing to preclude a finding that the defendant possessed both of these mental states with respect to the same victim at the same time by virtue of the same act or acts"). I begin by acknowledging that, although the substitute information and jury instructions do not specifically describe reckless and intentional assault in the first degree as charges in the alternative, they similarly do not specifically state that the jury might be asked to return a guilty verdict on both counts.⁵ The remainder of the record demonstrates, however, that the state presented its theory of the case to the jury in the alternative with respect to the applicable mental states, which bars it from arguing otherwise to save the convictions on appeal.⁶ In particular, after discussing the events leading up to the defendant's act of stabbing the victim, the prosecutor argued in her summation that: "I have two charges. . . . The first is assault in the first degree with a dangerous instrument. . . .

"In both charges, the state has to prove that it's [the defendant] that was involved; the second element, the intent to cause serious physical injury. . . .

"Intent to cause serious physical injury: the things that—in the testimony that you heard, are the use of a knife. Now, no one says that [the defendant] gets a pillow, a spatula, a butter knife; he gets a steak knife, something that you commonly use to cut something more difficult than say, butter or peanut butter, or something like that. They all talk about the thrusting motion, all . . . said a thrusting motion, at least three times, in the direction of [the victim].

"You heard that [the defendant] came in and says, my name is—I'm Black Rob. They call me Black Rob for a reason, because I kill people. Why does that matter? That's what is—he's trying to scare everybody. He's ranting at [Neri] over this money. He comes in and is angry. And if you look at [the defendant's] statement . . . you will read where he says, 'I was pissed. After [Neri] was pointing the gun at me, I was real pissed.' He's angry. [The victim] says, 'It felt like I was being punched in the stomach.' Those are things that you can use to cause—use to factor in intent to cause serious physical injury."

After arguing that the evidence satisfied the "serious physical injury" and "dangerous instrument" elements with respect to the intentional assault charge, the prosecutor stated: "Now there's the second charge, assault one, reckless indifference: a conduct creating a risk of death, recklessness, extreme indifference to human life and causes serious physical injury.

"You may be wondering why there are two charges. You have a variety of evidence to draw from and I don't know what you'll find credible. If you find [the defendant's] statement credible, he's saying he's waving the knife around, he's angry with [Neri], and [the victim] jumps in the middle, if you believe [the defendant's] statement you would look more to the assault one, reckless indifference."⁷ (Emphasis added.)

The prosecutor did not discuss the concept of reckless indifference in any detail, and instead went on to argue about the credibility of the testifying witnesses and the defendant's statement to the police. The prosecutor then concluded her closing argument by stating that: "I believe after the six of you deliberate, hear the judge's instructions, and apply the facts of the case as you've heard them, you will find [the defendant] guilty beyond a reasonable doubt of assault in the first degree, dangerous instrument."

In her rebuttal argument, the prosecutor again did not argue the concept of recklessness in any detail, but instead responded to the defendant's proffered theory of self-defense by...