State v. Lewis

146 Conn.App. 589

79 A.3d 102

STATE of Connecticut

v.Christopher LEWIS.

No. 34798.

Appellate Court of Connecticut.

Argued Sept. 12, 2013.

Decided Nov. 5, 2013.

Bradford Buchta, assistant public defender, for the appellant (defendant).

Jennifer F. Miller, special deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Michael A. DeJoseph, assistant state's attorney, for the appellee (state).

ALVORD, BEAR and FLYNN, Js.

BEAR, J.

The defendant, Christopher Lewis, appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a–60 (a)(1), and, following his plea of nolo contendere, of being a persistent serious felony offender in violation of General Statutes § 53a–40 (c)(2). On appeal, the defendant claims that the trial court improperly (1) denied his request to instruct the jury on third degree reckless assault as a lesser included offense of second degree intentional assault, (2) excluded his proffered photographic evidence, in violation of his right to present a defense under the sixth amendment to the federal constitution, and (3) determined that there was sufficient evidence for the state to establish beyond a reasonable doubt that he caused “serious physical injury” to the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim, Evan Driscoll, accompanied Stephanie Bernier to the courthouse in Norwalk on June 1, 2011. Bernier was the defendant's girlfriend, and they both had been arrested the previous night in connection with an incident in Norwalk witnessed by Driscoll. The incident had caused Driscoll to call the police. According to Driscoll's testimony, the defendant approached Driscoll as he and Bernier exited the courthouse, asked whether Driscoll had called the police, and threatened Driscoll. The defendant admitted that he asked Driscoll about the call to the police but denied threatening Driscoll.

The following day, on June 2, 2011, the defendant and Driscoll had another encounter, at the intersection of Fairfield Avenue and West Avenue in Bridgeport. Driscoll testified at trial that he was walking down Fairfield Avenue and texting on his cell phone when the defendant approached him and punched him in the side of the head with a closed fist. The defendant punched Driscoll in the side of the head several more times. Driscoll then fell to the ground and curled into a fetal position while the defendant kicked him in the head.

The defendant disputed Driscoll's version of the incident at trial and testified that Driscoll approached him while he was walking toward a store at the corner of Fairfield Avenue and West Avenue. Driscoll was accompanied by another male, and Driscoll was “[n]ot very hostile but he was hostile....” The defendant was “caught ... off guard” and “couldn't believe [this] was happening....” He “was just responding” and hit Driscoll, as “[n]othing but shock” went through the defendant's head. The defendant did not intend to injure Driscoll; he was “just responding and going off instincts....” He “was confused [because] things happened so quick.” The defendant conceded that he kicked Driscoll in the head once after Driscoll fell to the ground.

During the incident, the mayor of Bridgeport, William Finch, was driving his city issued vehicle toward the intersection of Fairfield Avenue and West Avenue. His son, Peter Finch, was sitting in the passenger's seat. Peter Finch noticed the “very harsh” and “violent beating” and alerted his father, who turned on the vehicle's red and blue flashing lights and pulled over to intervene. Mayor Finch and his son exited the vehicle, and Mayor Finch yelled at the defendant to stop. The defendant testified that he was “stuck” and “didn't know what was going on” when Mayor Finch and his son first arrived at the scene. The defendant stopped, looked at Mayor Finch and his son, noticed the vehicle and its lights, and fled the scene. The police apprehended and arrested the defendant several blocks from the intersection.

Mayor Finch and his son stayed with Driscoll until an ambulance arrived. Mayor Finch testified that Driscoll was “semiconscious,” “in a lot of pain,” and “delirious.” An ambulance soon arrived, and the paramedic on board, Bart Piekarski, rendered aid to Driscoll. Piekarski testified that Driscoll was cut above the left eye, bruised, and bleeding heavily from the head, face, and mouth. The ambulance transported Driscoll to a hospital, where he received treatment for his injuries.

The defendant was charged with one count of intimidating a witness in violation of General Statutes § 53a–151a and one count of assault in the second degree in violation of § 53a–60. The defendant pleaded not guilty to the charges. Thereafter, the state filed a part B information charging the defendant with being a persistent serious felony offender in violation of § 53a–40 (c)(2). A jury trial followed, from February 29 to March 5, 2012.

The defendant made the following three requests during the trial that are now the subject of the present appeal. First, the defendant requested that the trial court instruct the jury on third degree reckless assault in violation of General Statutes § 53a–61 (a)(2) as a lesser included offense of second degree intentional assault in violation of § 53a–60 (a)(1). The defendant submitted a written request to charge and made oral requests both on the record and off the record during a charge conference. The trial court denied the request, and the defendant subsequently took a postcharge exception.

The defendant also requested that the trial court admit into evidence two color photographs of Driscoll taken on June 30, 2011, twenty-eight days after the incident. The photographs depicted Driscoll's face and profile, both seemingly unmarred by any visible facial injuries. The defendant argued to the trial court that the photographs were “highly relevant because for assault in the second degree, the state has to establish serious physical injury....” The state objected to the admission of the photographs on relevancy grounds, and the court sustained the state's objection.

Finally, the defendant made an oral motion for a judgment of acquittal at the close of the state's case and renewed it at the end of the presentation of evidence. One of the grounds for the motion was that “the [s]tate ha[d] not presented sufficient evidence to establish serious physical injury....” The court denied the motion on both occasions.

On March 5, 2012, the jury returned a verdict of not guilty as to the charge of intimidation of a witness and guilty on the charge of assault in the second degree. The defendant subsequently pleaded nolo contendere to the charge of being a persistent serious felony offender contained in the part B information. The court thereupon sentenced the defendant to a ten year term of incarceration. This appeal followed.

I

The defendant first claims that the court improperly denied his request for a jury instruction on third degree reckless assault as a lesser included offense of second degree intentional assault because he met all four prongs of the test in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), for establishing his entitlement to an instruction on a lesser offense. We are not persuaded.

“A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id.

“In considering whether the defendant has satisfied the requirements set forth in State v. Whistnant, supra, 179 Conn. [at] 588 [427 A.2d 414], we view the evidence in the light most favorable to the defendant's request for a charge on the lesser included offense.... On appeal, an appellate court must reverse a trial court's failure to give the requested instruction if we cannot as a matter of law exclude [the] possibility that the defendant is guilty of only the lesser offense.” (Citations omitted; internal quotation marks omitted.) State v. Tomasko, 238 Conn. 253, 260–61, 681 A.2d 922 (1996).

“The Whistnant test is conjunctive, requiring satisfaction of all four prongs.” State v. Smith, 262 Conn. 453, 461, 815 A.2d 1216 (2003). The defendant claims that he has done so. The state in turn argues that the defendant has not satisfied the first, third, or fourth prongs. We conclude that the defendant has not satisfied the third and fourth prongs of Whistnant. See State v. Joseph, 116 Conn.App. 339, 353, 976 A.2d 772 (2009) (analyzing together “the third and fourth prongs of Whistnant because they are subject to the same evidentiary analysis”). Accordingly, we need not consider the additional prongs, and we conclude that the court properly denied the defendant's request to charge on a lesser include offense.

Section 53a–60 (a) provides in relevant part: “A person is guilty of assault in the second degree when (1) [w]ith intent to cause serious injury to another person, he causes such injury to such person or to a third person....” (Emphasis added.) Section 53a–61 (a), the basis of the requested jury instruction, provides in relevant part: “A person is guilty of assault in the third degree when ... (2) he recklessly causes serious physical injury to another person....” (Emphasis...