State v. McCoy, No. 25212.

879 A.2d 534

91 Conn.App. 1

STATE of Connecticut v. Dester G. McCOY.

No. 25212.

Appellate Court of Connecticut.

Argued April 29, 2005.

Decided August 23, 2005.

Donald D. Dakers, special public defender, for the appellant (defendant).

Michael E. Criscuolo, special deputy assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and John J. Davenport, assistant state's attorney, for the appellee (state).

DiPENTIMA, HARPER and MIHALAKOS, Js.

HARPER, J.

The defendant, Dester G. McCoy, appeals from the judgment of conviction, following a jury trial, of reckless manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55a(a) and 53a-55(a)(3).¹ The defendant claims that the evidence does not support the conviction because it did not support a finding that he acted under circumstances evincing an extreme indifference to human life.² We affirm the judgment of the trial court.

The jury reasonably could have found that, at approximately 5 a.m., on April 8, 2001, the defendant went to the apartment of his girlfriend, the victim, in Waterbury. He entered the apartment with a nine millimeter pistol tucked inside the waistband of his pants. The defendant and the victim went to the victim's bedroom. The defendant removed the magazine from his pistol. While the victim was reclining on her bed, the defendant was getting undressed at the victim's bedside. While kneeling, either on or alongside the victim's bed, the defendant picked up his pistol, pointed it in the victim's direction and pulled the trigger. The defendant shot the victim, at close range, in the thigh. The bullet traveled through the victim's pelvis and caused substantial internal injury in the victim's abdominal cavity. As a result, the victim died shortly thereafter. Additional facts will be set forth as necessary.

"In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... In conducting this review, the probative force of the evidence is not diminished where the evidence, in whole or in part, is circumstantial rather than direct." (Internal quotation marks omitted.) State v. Holmes, 75 Conn.App. 721, 739-40, 817 A.2d 689, cert. denied, 264 Conn. 903, 823 A.2d 1222 (2003).

"A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses ... a pistol, revolver, shotgun, machine gun, rifle or other firearm...." General Statutes § 53a-55a(a). "A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." General Statutes § 53a-55(a).

The defendant concedes that, acting recklessly, he caused the victim's death. He challenges the jury's finding that he acted under circumstances evincing an extreme indifference to human life.

"Our Penal Code does not define, in title 53a of the General Statutes, what constitutes extreme indifference to human life.... Therefore, it is appropriate to look to the common understanding of the term as expressed in a dictionary.... This court has done so in the past. Examining the term as it is used in title 53a of the General Statutes, we have stated that the legislature modified the level of indifference required with the adjective extreme, which has been defined to mean existing in the highest or greatest possible degree.... It is synonymous with excessive.... What evinces an extreme indifference to human life is really a question of fact." (Citations omitted; internal quotation marks omitted.) State v. Colon, 71 Conn.App. 217, 225, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002). "Extreme indifference to human life" has been defined accurately, in part, as more than "[m]ere carelessness" or ordinary recklessness. State v. Spates, 176 Conn. 227, 236, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S.Ct. 1248, 59 L.Ed.2d 475 (1979); see also State v. Garcia, 81 Conn.App. 294, 310, 838 A.2d 1064 (2004). "Extreme indifference to human life" also has been defined accurately, in part, as "a high degree of disinterest to human life." (Internal quotation marks omitted.) State v. Bunker, 27 Conn.App. 322, 326-27, 606 A.2d 30 (1992).

The defendant testified at trial concerning the events leading to the victim's death. The defendant testified that he spoke with the victim on the telephone before arriving at her apartment and that she let him in the apartment.³ He testified that he had his pistol, which he had owned at least since 2000, in the waistband of his pants. He testified that, once in the victim's bedroom, he removed the magazine from the pistol and began "playing" with the pistol while the victim was reclining in her bed. He testified that he squeezed the trigger of the pistol while it was aimed in the victim's direction, but that he did not intentionally shoot the victim.⁴ The defendant testified that he was not aware that a live round remained in the pistol's chamber after he had removed the magazine and that he did not intend to injure the victim. The defendant classified the shooting as "an accident" that occurred because he was "stupid enough to play with the gun."⁵ The defendant further testified that after he shot the victim, he attempted to call for help on the telephone, but that he was unable to complete the call because he was nervous. He recalled that he gave the telephone to a female whom he described as the victim's niece, who also was in the apartment, and that he returned to the victim's bedroom.⁶ He lifted the comforter that was covering the victim and observed her injuries and that she was bleeding. The defendant testified that, motivated by thoughts about the police arriving on the scene, he collected his pistol, the magazine he had removed from the pistol and the shell casing from the bullet he had fired at the victim and left the apartment. The defendant further testified that three to four minutes later, he returned to the apartment and asked the victim's niece whether she had called for help. He testified that, after learning that help was on the way, he fled the scene.

The defendant testified that he hid the pistol under some shrubbery in an alley and that he walked to an area in the vicinity of the train station in Waterbury. The defendant recalled that he soon observed police officers and that while he was walking, they approached him and asked if he was connected with the shooting, and that he told them that the shooting was "an accident."

Edward Apicella, a police officer with the Waterbury police department, testified that on April 8, 2001, he was on patrol duty when he received a report concerning a shooting suspect. Apicella testified that he drove his police cruiser to an area near the train station in Waterbury where he saw a male, who matched the description of the shooting suspect, "walking very quickly" along a street. Apicella testified that he and his partner exited their cruiser and approached the individual, the defendant. He testified that the defendant appeared to be startled upon seeing the officers and immediately stated to them: "I didn't mean to shoot her." Apicella testified that he restrained the defendant, patted him down and advised him of his Miranda rights.⁷ Apicella testified that he found a nine millimeter shell casing in the defendant's pants pocket. Apicella also testified that, once in custody, the defendant stated: "I didn't mean to shoot her. I didn't know how the gun works." The defendant voluntarily led the police to the alley where he concealed his pistol. The police recovered the pistol under some shrubbery.

The relevant factual issue before the jury was whether the defendant "had the general intent to engage in conduct that created a grave risk of death to another person under circumstances evincing an extreme indifference to human life." State v. Best, 56 Conn.App. 742, 754, 745 A.2d 223, cert. denied, 253 Conn. 902, 753 A.2d 937 (2000). Where, as here, factual issues exist that are related to a defendant's intent, "we recognize that such factual issues are characteristically proven by circumstantial evidence.... It is obvious that direct evidence of the accused's state of mind is rarely available and, therefore, intent is often inferred from conduct ... and from the cumulative effect of the circumstantial...