State v. Schultz

921 A.2d 595

100 Conn.App. 709

STATE of Connecticut v. Nathan SCHULTZ.

No. 26416.

Appellate Court of Connecticut.

Argued October 18, 2006.

Decided April 24, 2007.

John R. Gulash, Jr., Bridgeport, for the appellant (defendant).

John A. East III, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Michael A. DeJoseph, assistant state's attorney, for the appellee (state).

SCHALLER, ROGERS and MIHALAKOS, Js.

ROGERS, J.

The defendant, Nathan Schultz, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree by means of a dangerous instrument in violation of General Statutes § 53a-59 (a)(1).¹ On appeal, the defendant claims that (1) the trial court improperly failed to instruct the jury regarding the defense theory of accident or unintended consequence, thereby violating his federal due process rights to a fair trial and to establish a defense, (2) the court improperly failed to charge the jury on his requested lesser included offense instruction regarding assault in the third degree and (3) the statutory scheme mandating a nonsuspendable, five year minimum term of imprisonment violates his rights to equal protection and due process. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, are relevant to the defendant's appeal. In the late evening hours of April 12, 2003, Fabian Hernandez and a group of his friends and acquaintances left a restaurant in Stamford and arrived at Liquid, a nightclub in South Norwalk. Hernandez went to the crowded lower level bar and dance floor area, ordered drinks and began socializing. Sometime thereafter, Hernandez noticed that he and some other people were being splashed by droplets of liquid. Hernandez turned around and saw the defendant, approximately three to four feet away putting his hand inside his glass and flicking the liquid off his fingers into the crowd. Hernandez walked over to the defendant, tapped him on the elbow and informed him that he was "splashing" people. The defendant took his right hand, which was holding a glass, and struck Hernandez in the face, breaking the glass. The glass shattered with such impact that a friend of Hernandez, who was standing approximately one foot away from him at that moment, discovered a piece of glass in his pocket after the altercation. Hernandez' face was injured, and he was covered in blood. The impact caused injury across his cheekbone, down his cheek, on his left temple, underneath his eye and on the top part of his ear.

After he was struck, Hernandez stood motionless for a few seconds before another person hit him in the face and others began punching and grabbing him. Bleeding badly, Hernandez then left Liquid. Hernandez went to a hospital where he received forty-one sutures to close the wound on his face. He was left with permanent facial scarring. The defendant subsequently was arrested.

After a trial to the jury, the defendant was convicted of assault in the first degree. The court sentenced the defendant to eight years imprisonment, execution suspended after five years, and three years probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court improperly failed to instruct the jury as he requested regarding the defense theory of accident or unintended consequence, thereby violating his federal due process rights to a fair trial and to establish a defense.² We disagree.

"It is settled law that a defendant who has produced evidence supporting a legally recognized defense is entitled, as a matter of law, to a theory of defense instruction, and that the denial of such an instruction is a violation of due process. . . . [A] request to charge which is relevant to the issues of [a] case and which is an accurate statement of the law must be given . . . . A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. . . . A jury instruction is constitutionally adequate if it provides the jurors with a clear understanding of the elements of the crime charged, and affords them proper guidance for their determination of whether those elements were present. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result." (Internal quotation marks omitted.) State v. Fagan, 92 Conn.App. 44, 55, 883 A.2d 8, cert. denied, 276 Conn. 924, 888 A.2d 91 (2005).

The defendant did not dispute that he struck Hernandez. At trial, the defendant testified that he tossed ice cubes from his drink in an attempt to gain the attention of his girlfriend. The defendant testified that three men then approached him, one of them being Hernandez. He claimed that Hernandez grabbed his arm and punched him in the face, and, as a reflexive reaction, he struck Hernandez with his right hand, which was holding a glass. The theory of his defense was that while trying to defend himself from an attack by Hernandez, he reflexively hit Hernandez in the face. The defendant testified that he did not intend any consequences but simply reacted. The defendant requested, at the November 22, 2004 charge conference and in his supplementary request to charge dated November 19, 2004, that the court deliver an instruction regarding accident and unintended consequence.³

The court declined to give the defendant's requested instruction, concluding that the instructions it intended to deliver regarding intent and self-defense adequately covered the proposed instruction. The court concluded in relevant part: "There was a blow struck with a glass. However momentary, it seems to me that the jury has to decide if the requisite intent was formed in that moment, and the instructions covered the requirement of intent. If the jury fails to find beyond a reasonable doubt the requisite intent for either the offense charged or the lesser included offense, they are instructed that they must acquit. And to the extent that it might go to self-defense, as [defense counsel] has indicated, I think all of the elements of self-defense, including . . . the intent of the defendant and the situation that he faced and whether it was reasonable are covered on the instruction of self-defense, so I'm not going to give the charge as requested on accidental conduct or, I think you called it, unintended consequences."

The court then, during its final instructions to the jury, when discussing the intent element of assault in the first degree with a dangerous instrument, stated: "What a person's purpose, intention or knowledge has been is usually a matter to be determined by inference. No person is able to testify that he looked into another person's mind and saw therein a certain purpose to cause serious physical injury to another. The only way in which a jury can ordinarily determine what a person's purpose was at any given time, aside from that person's own statements or testimony, is by determining what the person's conduct was and what the circumstances were surrounding that conduct, and from that, infer what the person's purpose was."⁴ At the state's request, the court also gave a lesser included offense instruction for assault in the second degree with a dangerous instrument and gave a similar instruction with respect to the element of intent.⁵

We conclude that the court's refusal to give the defendant's requested jury instruction regarding the defense theory of accident or unintended consequence was not improper because the court instructed the jury regarding the intent element of assault with a dangerous instrument in the first and second degrees. The defendant admitted that he struck Hernandez with a cocktail glass. As a result, Hernandez suffered injuries. The jury was left to determine whether the defendant intended this injury when he struck Hernandez. When defining intent in the context of assault, the court made clear in its instruction that if it was the conscious objective of the defendant to cause the result, namely, the injury, then he acted with the requisite intent, but if the jury failed to find the requisite intent beyond a reasonable doubt, then the defendant must be found not guilty. Given the court's instructions, it necessarily follows that the jury could not have found both that the defendant acted with the specific intent to cause injury to Hernandez and that he did not intend to inflict such injury. Accident is not a justification for a crime; State v. Silveira, 198 Conn. 454, 461, 503 A.2d 599 (1986); it negates only one element of the crime, namely, intent. State v. Miller, 186 Conn. 654, 665, 443 A.2d 906 (1982).

A reasonable jury would know that if it found that the defendant did not intend any consequences, then it could not also find that the defendant intended to cause physical injury or serious physical injury. The jury instruction on intent provided the jurors with a clear understanding of this element of the crime charged, and its lesser included offense, and therefore the requested charge on unintended consequences as it related to intent was given in substance.

As to the defendant's claim of self-defense and his request for a charge on accident or unintended consequences, the requested instruction is not applicable because the theories of accident and self-defense are inconsistent. See State v. Shabazz, 246 Conn. 746, 763-65, 719 A.2d 440 (1998), cert. denied, 525 U.S. 1179, 119 S.Ct. 1116, 143 L.Ed.2d 111 (1999). Unlike the defense of accident, self-defense presumes an intentional but justified act. See General Statutes § 53a-19. The court gave a lengthy instruction regarding self-defense.⁶

II

The defendant next claims that the court improperly failed to charge the jury on his requested instruction regarding the lesser included offense of assault in the third...