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concluding that there were two different criminal acts because intervening event precipitated change in defendant's intent
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No. 19339.
05-03-2016
STATE of Connecticut v. Robert KING.
Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, Margaret Gaffney Radionovas and Jayne Kennedy, senior assistant state's attorneys, and Emily D. Trudeau, deputy assistant state's attorney, for the appellant (state). Mark Rademacher, assistant public defender, for the appellee (defendant).
Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, Margaret Gaffney Radionovas and Jayne Kennedy, senior assistant state's attorneys, and Emily D. Trudeau, deputy assistant state's attorney, for the appellant (state).
Mark Rademacher, assistant public defender, for the appellee (defendant).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.
Opinion
ESPINOSA, J. In this certified appeal, we must determine whether a jury's verdict convicting the defendant, Robert King, of both intentional and reckless assault is inconsistent as a matter of law. The state appeals, following our grant of certification, from the judgment of the Appellate Court reversing the conviction of the defendant of two counts of assault in the first degree in violation of General Statutes § 53a–59 (a)(1) and (3). State v. King, 149 Conn.App. 361, 363, 87 A.3d 1193 (2014). The state argues that the Appellate Court improperly concluded that the verdict was legally inconsistent because (1) the jury could have found the defendant guilty of both intentional and reckless assault on the basis of the evidence before it, and (2) the mental states required by both offenses correspond to separate results and, therefore, are not mutually exclusive. Additionally, the state contends that the Appellate Court erroneously conflated the question of whether the defendant's due process right to notice had been violated with the question of whether the verdict was legally consistent. The proper, independent analysis of the due process issue, according to the state, demonstrates that the defendant's due process right to notice of the charges against him was not violated. We agree with the state that the verdict against the defendant is consistent as a matter of law. We further conclude that the defendant had sufficient notice of the charges against him. Accordingly, we reverse the judgment of the Appellate Court.
We granted the state's petition for certification, limited to the following two issues: (1) “Did the Appellate Court properly determine that the jury [verdict] finding the defendant guilty of both intentional and reckless assault [was] legally inconsistent and, therefore, had to be reversed?” and (2) “If the answer to the first question is in the affirmative, did the Appellate Court properly determine that a new trial was the correct remedy?” State v. King, 312 Conn. 917, 917–18, 94 A.3d 642 (2014). The state has not briefed the second certified issue and concedes that a new trial would be the proper remedy.
General Statutes § 53a–59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person....”
We address this question although we did not originally certify it. In its briefing and at oral argument before this court, the state requested that we address the Appellate Court's application of due process notice analysis in the present case given that the Appellate Court's decision rests heavily on the application of due process principles.
The jury reasonably could have found the following facts. On December 18, 2010, Kyle Neri and Angela Papp went to visit the victim, Kristen Severino, at her residence in Waterbury. Neri and Papp had spent the day getting high on crack cocaine and continued to do so with the victim once they arrived at her residence. While the three were sitting in the victim's apartment, the defendant entered and began to argue with Neri over an unpaid $10 loan that Neri owed the defendant. As the argument between Neri and the defendant continued to escalate, the defendant went to the apartment's kitchen and returned, brandishing a steak knife. The defendant began waving the knife around and shouting at Neri and Papp as Neri attempted to physically wrest the knife from the defendant's control.
The victim then intervened in the altercation by attempting to persuade the defendant that Neri should not die over a $10 debt. When her verbal entreaties proved unsuccessful, the victim attempted to physically separate the combatants as the defendant continued to swing the knife at Neri. The defendant then threw the victim against a wall and waved the knife in front of her face. The victim attempted to move and the defendant rapidly stabbed her several times; he then fled the scene.
Neri and Papp left the apartment and Papp flagged down a patrolling police officer, who then entered the apartment with Papp and called an ambulance. Upon arriving at the hospital, the victim received emergency surgery on four stab wounds to her abdomen. The treating physician stated that had the victim not been brought to the hospital and received treatment, she likely would have bled to death from her wounds.
The defendant was arrested and charged in a substitute information with both intentional and reckless assault in the first degree. A jury trial was held in April, 2012, at which Neri, Papp, and the victim all testified. On the basis of the witnesses' testimony and a written statement by the defendant that was read into evidence, the jury found the defendant guilty of both charges. On April 23, 2012, the defendant filed a motion for a new trial pursuant to Practice Book § 42–53, arguing that the convictions were legally inconsistent. The trial court denied the defendant's motion, stating that the jury reasonably could have found that the victim was initially stabbed when the defendant was recklessly swinging the knife around and that the defendant then intentionally stabbed the victim when she intervened in the conflict between the defendant and Neri. The defendant appealed to the Appellate Court, arguing that his convictions were legally inconsistent and prosecuted based on a theory of guilt of which he had never been notified. Id., at 363, 87 A.3d 1193. The Appellate Court agreed with the defendant and reversed the judgment of conviction and remanded the case for a new trial. Id., at 376, 87 A.3d 1193. This certified appeal followed.
I
In the present case, the state argues that the Appellate Court erroneously concluded that the defendant's convictions for intentional and reckless assault were legally inconsistent. In its analysis, the Appellate Court reasoned that “[n]othing in the record” would have permitted the jury to find other than that the defendant intentionally assaulted the victim as part of “one continuous act, unbroken in time and character.” Id., at 374, 87 A.3d 1193. As a fair reading of the record reveals that the jury could have credited the defendant's account that he accidentally stabbed the victim while flailing the knife at Neri and also credited the testimony of the other witnesses that the defendant intentionally stabbed the victim after she intervened, we agree with the state and conclude that the defendant's convictions are not legally inconsistent. Furthermore, even if the Appellate Court was correct that the record reflects that the state presented evidence that the attack was one continuous act; id.; our decision in State v. Nash, 316 Conn. 651, 114 A.3d 128 (2015), controls, and the defendant's convictions are not inconsistent as a matter of law.
Convictions are legally inconsistent when “a conviction of one offense requires a finding that negates an essential element of another offense of which the defendant has also been convicted.” Id., at 659, 114 A.3d 128. When confronted with such a claim we carefully examine the elements of both offenses. Id.; State v. Hinton, 227 Conn. 301, 313, 630 A.2d 593 (1993). In examining a claim of legal inconsistency, we must “closely examine the record to determine whether there is any plausible theory under which the jury reasonably could have found the defendant guilty of both offenses.” State v. Nash, supra, 316 Conn. at 663, 114 A.3d 128. Additionally, “in determining whether two mental states are mutually exclusive, the court must consider each mental state as it relates to the particular result described by the statute.” Id., at 664, 114 A.3d 128. The question of whether two convictions are legally inconsistent is a question of law, over which we exercise plenary review. Id., at 659, 114 A.3d 128.
In the present case, the parties describe the assault perpetrated by the defendant in two different ways. The defendant argues that under the evidence presented, the jury reasonably could have found that there was only one continuous intentional assault on the victim and that for the jury to have also found a reckless assault would be legally inconsistent. Conversely, the state argues that, under the same evidence, the jury reasonably could have found that the assault occurred in two phases, beginning first as a reckless assault and then evolving into an intentional assault. We conclude that under either the defendant's version or the state's version, the verdict is not legally inconsistent.
Our recent decision in Nash addressed substantially similar issues to those raised in the present case. In Nash, the defendant, Kevin Nash, grew angry with his friend, Tyrell Knott, when Knott began to spread rumors about Nash's sexuality. Id., at 655, 114 A.3d 128. In order to “teach ... a lesson” to Knott, Nash drove to Knott's home, entered the backyard, and fired four or five shots from a handgun at the second story of Knott's house. Id. One of the bullets penetrated the wall of the house and struck Knott's sister in the left buttock. Id. She was transported to the hospital, successfully treated, and released. Id. Following his arrest, Nash was charged and convicted of, inter alia, the same offenses as the defendant in the present case: intentional assault in the first degree in violation of § 53a–59 (a)(1) and reckless assault in the first degree in violation of § 53a–59 (a)(3). Id., at 656, 114 A.3d 128.
The Appellate Court released its decision in the present case on April 8, 2014, and we therefore recognize that the Appellate Court did not have the advantage of relying on the reasoning of our decision in Nash, which was not decided until May 5, 2015.
On appeal to this court, Nash argued that his convictions for both intentional and reckless assault in the first degree, based on the same conduct, were legally inconsistent. Id., at 654, 114 A.3d 128. We disagreed and upheld Nash's convictions “because the two mental states required to commit the offenses relate to different results.” Id., at 666, 114 A.3d 128. We observed that the “jury could have found that [Nash] intended only to injure another person when he shot into [Tyrell's house] but that, in doing so, he recklessly created a risk of that person's death in light of the circumstances surrounding his firing of the gun into the dwelling.” Id., at 667, 114 A.3d 128. Given the evidence before it, the jury reasonably could have found that Nash possessed the requisite mental states to convict him of both intentional and reckless assault in the first degree. Id., at 667–68, 114 A.3d 128. Thus, the crimes of reckless and intentional assault are not in and of themselves legally inconsistent.
We recognize that convictions are legally consistent if there is “any plausible theory” under which the jury reasonably could have found the defendant guilty of both of the offenses that the defendant claims are legally inconsistent. Id., at 663, 114 A.3d 128. At trial in the present case, the jury heard two accounts of the assault. First, the defendant's written statement, provided to a detective and introduced into evidence by the state without objection from the defense, described the stabbing as an accident that occurred when he was swinging the knife at Neri and the victim attempted to physically separate the combatants. In the defendant's account, he and Neri “got into a tussle. [Neri] was trying to take the knife from me. I know it was getting rough. That was when [the victim] got into the middle of us. She was trying to break us up.” While the victim was in between the defendant and Neri, the defendant began “swinging the knife at [Neri]. In the middle of that, [the victim] started screaming.... That's when I realized that she was hurt. At first, I ain't know what was wrong, but then I thought about it. That's when I knew that I had stabbed her.” Thus, if the jury credited the defendant's statement, it could have found that the defendant's act of swinging a knife at Neri in close quarters while the victim was between them demonstrated “an extreme indifference to human life,” and, that by doing so, the defendant “recklessly engage[d] in conduct which create[d] a risk of death to another person,” as required by § 53a–59 (a)(3) for a conviction of reckless assault in the first degree.
The defendant chose not to testify at trial.
Second, the testimony of Neri, Papp, and the victim portrayed the defendant as intentionally stabbing the victim after the victim interfered in the defendant's altercation with Neri. According to Neri, the victim injected herself into the argument, stated that “nobody's going to get stabbed over $10,” and offered to pay the defendant the money herself. The defendant then put “the knife to her face and [told] her to shut the fuck up.” After the victim attempted to move away, the defendant “stab[bed] her three times” on the “left side” of her “stomach area.” Consistent with Neri's account, Papp testified that the defendant “started swinging the knife on [the victim]” and “stabbing her ... over and over and over, just going into [the victim].” Likewise, the victim testified that she approached the defendant and told him “that nobody should die and I would get him the money, nobody needs to be killed tonight.” The victim stated that the defendant then “threw me up against the wall and put the knife in my face and was screaming at me ... and yelling at me and calling [me] a bitch....” The victim testified that the defendant then “stabbed me ... [i]n my stomach right here, and three times over here on the side.” The jury reasonably could have credited the combined testimony of the victim, Papp, and Neri to conclude that the defendant acted with “intent to cause serious physical injury” in violation of § 53a–59 (a)(1) when he stabbed the victim at least three times with a steak knife.
We therefore agree with the state that the jury reasonably could have found that the defendant's conduct amounted to two separate acts. As the defendant was charged with both reckless and intentional assault, the jury could have found that the defendant was guilty of both crimes by stabbing the victim while recklessly swinging the knife at Neri and then intentionally stabbing the victim after she intervened and the defendant threw her against the wall. The state's exhibits 14 and 15 showed, and the Appellate Court noted, that the victim had four stab wounds, and as Neri testified that he only witnessed the defendant stab the victim three times, the jury could have attributed the fourth stab wound to the defendant's testimony describing the stabbing as an accident that occurred when the victim got in between the combatants. See State v. King, supra, 149 Conn.App. at 364 n. 2, 87 A.3d 1193 (recognizing that photographic evidence at trial established that there were four stab wounds ). Accordingly, the defendant's convictions are not legally inconsistent under the state's argument that the assault occurred in two reckless and intentional phases, respectively.
The specifics of how the defendant was charged and how the case was presented to the jury are discussed in greater detail in part II of this opinion.
Additionally, we observe that under the defendant's version that the assault only occurred in one intentional episode, the convictions are not legally inconsistent as the requisite mental states for the two convictions are not mutually exclusive. As is clear from our recent decision, a defendant may be convicted of crimes that require differing mental states, so long as those states relate to different criminal results. State v. Nash, supra, 316 Conn. at 668–69, 114 A.3d 128 ; cf. State v. King, 216 Conn. 585, 594, 583 A.2d 896 (1990). The present case is akin to our decision in Nash. Like Nash's act of firing multiple shots from a handgun into the second story of his friend's home, the jury reasonably could have found that when the defendant stabbed the victim, he intended to “cause serious injury to” her and that he also “recklessly engaged in conduct which [created]” a risk of the victim's death. See State v. Nash, supra, at 666 n. 15, 666–68, 114 A.3d 128. That is, the defendant's act of stabbing the victim is consistent with two different mental states, each related to two different results. Thus, even under the defendant's argument, the reasoning of Nash controls and the verdict returned by the jury is not legally inconsistent. II
Conversely, our decision in State v. King, supra, 216 Conn. 585, 583 A.2d 896, is distinguishable from the present case on these very grounds. In King, the defendant was convicted of both attempt to commit murder and reckless assault after he ignited the cell of a fellow prisoner using an improvised incendiary device. Id., at 586, 588, 583 A.2d 896. We held that the defendant's convictions could not stand, as the mental states for the intentional crime of attempt to commit murder and the crime of reckless assault were mutually exclusive because the defendant could not have both intentionally and recklessly lit the cell on fire. Id., at 594–95, 583 A.2d 896.
We next determine whether the Appellate Court properly concluded that the defendant was deprived of his due process rightto notice that he could be convicted under both of the charges brought against him. Although the Appellate Court somewhat overlaid its due process and consistency of the verdict analyses, its decision rested heavily on its determinations concerning the defendant's due process rights. State v. King, supra, 149 Conn.App. at 375, 87 A.3d 1193. We conclude, however, that the defendant had constitutionally sufficient notice of the charges being brought against him.
The following procedural facts are necessary to resolve the question of whether the defendant had proper notice of the charges against him. Following his arrest, the defendant was charged in a two count substitute information with two crimes: assault in the first degree in violation of § 53a–59 (a)(1) and assault in the first degree in violation of § 53a–59 (a)(3). See footnote 2 of this opinion. At trial, the state did not present the evidence in a manner that related specifically to one charge or the other. After the state rested its case, the court discussed with the defendant his decision not to testify and indicated the possible sentences he could face if convicted. The court specifically noted to the defendant that he could be “convicted under both sub[divisions]” and explained how that would affect his sentence. Prior to closing argument, the court informed the jury that “to the extent that what [an attorney] says about the law differs from what I say, you have to follow my legal instructions ... if there's any discrepancy you've got to follow my instructions.” During closing argument, the prosecutor stated to the jury: “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.”
Following closing argument, the court instructed the jury and informed it that it “must decide which testimony to believe and which testimony not to believe. You may believe all, none or any part of any witness' testimony.” The court also reminded the jury that “arguments and statements by the attorneys in final argument or during the course of the case are not evidence.” The court then explained the charges against the defendant to the jury, noting that the defendant was “charged with two crimes.” The court next explained the elements of each crime to the jury. Following the delivery of the jury charge, the court asked whether counsel had any objection to the charge. Neither counsel objected. At no point in the court's instructions did it suggest that the jury could not convict the defendant of both charges.
In considering the defendant's inconsistent verdict claim on appeal, the Appellate Court observed that “[i]n determining whether a verdict is legally and logically inconsistent ... a reviewing court must also consider the way in which the state presented the case to the jury.” State v. King, supra, 149 Conn.App. at 371, 87 A.3d 1193. Accordingly, the Appellate Court concluded that “[w]hile the charging document in the present matter did not articulate that the two counts of assault in the first degree were made in the disjunctive, our review of the record and transcripts confirms that the state presented the case in that manner.” Id., at 373, 87 A.3d 1193. Relying on the prosecutor's closing argument and the manner in which the state presented its evidence, the Appellate Court determined that the defendant was deprived of his due process right to notice that both charges were being brought against him, and reversed the judgment of conviction and remanded the case for a new trial. Id., at 375–76, 87 A.3d 1193.
On appeal before this court, the state argues that the Appellate Court improperly applied the theory of the case analysis by intertwining it with its legal consistency of the verdict analysis. Accordingly, the state contends that when analyzed properly, the defendant had sufficient notice that he could be convicted of both charges and that the Appellate Court erred in concluding otherwise. In response, the defendant argues that the Appellate Court properly concluded that the state tried the two assault charges in the disjunctive and that he was deprived of his due process right to notice that he could be convicted of both charges. We agree with the state.
As a preliminary matter, we observe that the Appellate Court indeed blended its due process analysis with its legal consistency of the verdict analysis rather than evaluating those two separate claims independently. Although both claims arise from the same underlying fundamental concern—namely whether a defendant's convictions were arrived at fairly and legitimately—they are ultimately separate issues and reviewing courts should evaluate them as such. The Appellate Court framed its analysis in the following manner: “[I]n making our assessment of whether the jury's verdict in the matter violates the defendant's due process right because, given the manner in which he was prosecuted and the evidence in support of his culpability, he was convicted after an inconsistent verdict, we look first to the evidence and argument presented to the jury.” Id., at 373, 87 A.3d 1193. Thus, the Appellate Court's statement of the analytic framework under which to evaluate claims of legal inconsistency appears to combine both our existing legal consistency analysis as outlined in Nash and part I of this opinion with the due process analysis we conduct when the state alters its theory of the case on appeal.
A determination of whether a defendant has received constitutionally sufficient notice of the charges to be brought against him at trial is guided by the following framework. A fundamental tenet of our due process jurisprudence is that “[i]t is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948). Accordingly, the United States Supreme Court has explained that “[t]o 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.” Dunn v. United States, 442 U.S. 100, 106, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979). Reviewing courts, therefore, cannot affirm a criminal conviction based on a theory of guilt that was never presented to the jury in the underlying trial. Chiarella v. United States, 445 U.S. 222, 236, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980).
Principles of due process do not allow the state, on appeal, to rely on a theory of the case that was never presented at trial. State v. Carter, 317 Conn. 845, 853–55, 120 A.3d 1229 (2015). Although we recognize that the finder of fact may consider all of the evidence properly before it, in order for us to uphold the state's theory of the case on appeal, that theory must have been “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.” (Internal quotation marks omitted.) State v. Robert H., 273 Conn. 56, 83, 866 A.2d 1255 (2005). Essentially, the state may not “pursue one course of action at trial and later, on appeal, argue that a path [it] rejected should now be open to [it].... To rule otherwise would permit trial by ambuscade.”(Internal quotation marks omitted.) State v. Scruggs, 279 Conn. 698, 719, 905 A.2d 24 (2006). Accordingly, on appeal, the state may not construe evidence adduced at trial to support an entirely different theory of guilt than the one that the state argued at trial. See State v. Fourtin, 307 Conn. 186, 207–10, 209 n. 18, 52 A.3d 674 (2012).
Whether a defendant has received constitutionally sufficient notice of the charges of which he was convicted may be determined by a review of the relevant charging document, “the theory on which the case was tried and submitted to the jury,” and the trial court's jury instructions regarding the charges. See, e.g., Dunn v. United States, supra, 442 U.S. at 106, 99 S.Ct. 2190. Upon our review of the substitute information, the state's evidence, and the trial court's jury instructions, we conclude that the defendant in the present case had notice of the charges being brought against him and that his due process rights were not thereby violated. Although the state prosecuted the case at times in a manner that was less than precise, we conclude that the state presented to the jury “in a focused or otherwise cognizable sense” that the defendant could be convicted of both charges and that such a theory was not a mere “ ‘incidental reference.’ ” State v. Robert H., supra, 273 Conn. at 83, 866 A.2d 1255.
First, the substitute information charged the defendant with both reckless and intentional assault, and not one offense or the other. Our previous decisions have long recognized that the information serves to notify the defendant of the charges against which he must defend at trial. See State v. James, 247 Conn. 662, 679, 725 A.2d 316 (1999) ; State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993) ; State v. Spigarolo, 210 Conn. 359, 382, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989) ; see also Practice Book § 36–13 (“[t]he information shall state for each count the official or customary citation of the statute, rule, regulation, or other provision of law which the defendant is alleged to have violated”). The substitute information in the present case contains two separate charges—one for each offense—and nothing in the charging document indicates that it was the state's intent to prosecute the charges in the alternative rather than to present both charges to the jury at trial. Furthermore,
The dissent arrives at the unsupported conclusion that, although the substitute information contains both charges, both the substitute information and the jury instructions are “fairly open-ended” and, therefore, do not provide notice to the defendant. See footnote 9 of the dissenting opinion. The purpose of the information is to provide a defendant with notice of the charges against him and the jury instructions serve as a reflection of those charges. To discount their significance only because charging instruments and jury instructions follow a similar format in every case would dramatically and unnecessarily narrow the ken of our due process inquiry in this context.
had the defendant been unclear about the charges presented in the substitute information, he could have moved for the state to file a bill of particulars pursuant to Practice Book § 41–20.
Second, nothing in the manner in which the state prosecuted the case encouraged the defendant to craft his defense in a certain way or to forsake defending against evidence he believed the state would not present. In that regard, the present case is readily distinguishable from our decision in Scruggs in which we determined that the due process right of the defendant was violated because the state influenced defense strategy by putting the defendant on notice of its theory of the case but later argued in support of the conviction based on a theory that it had not previously relied on and that the defendant was not on notice to defend against. State v. Scruggs, supra, 279 Conn. at 718, 905 A.2d 24. In Scruggs, the defendant was charged with risk of injury to a child and, at trial, the state, in its arguments against the defendant's motion for a judgment of acquittal at the close of the state's case, asserted its theory that the living conditions in the defendant's home were a risk to any child, rather than to the victim in the particular case who suffered from serious mental and physical health issues. Id., at 717–18, 905 A.2d 24. We concluded that the state's representation did not place the defendant on notice that she could be convicted if the state proved merely that the living conditions in her apartment presented a risk to the particularly fragile victim. We concluded, therefore, that the state could not argue to uphold the conviction on those grounds and, furthermore, that the statute the defendant had been convicted of violating was unconstitutionally vague as applied to her conduct. Id., at 718–19, 905 A.2d 24. Although the state in the present case did not present its evidence in a manner that specifically related to one charge or the other, after our review of the state's evidence as a whole it is clear that the state intended to try both charges in the substitute information. As fully outlined in part I of this opinion, the state called Papp, Neri, and the victim as witnesses. The testimony of all three witnesses described—with some minor variations between the accounts—an intentional assault in which the defendant grew angry with the victim and intentionally stabbed her after she intervened in the defendant's conflict with Neri. Accordingly, this particular evidence supported the state's charge of intentional assault. In addition to the evidence describing an intentional assault, the state also introduced the defendant's written statement that described an accidental stabbing of the victim while the defendant was flailing the knife at Neri. The content of the defendant's statement is clearly evidence supporting the charge of reckless assault and not intentional assault. Thus, the state introduced evidence to support both charges listed in the substitute information.
As the dissent correctly observes, much of the case law concerning the theory of the case doctrine initially developed in the context of sufficiency of the evidence claims. See State v. Robert H., supra, 273 Conn. at 82–83, 866 A.2d 1255. To be clear, the defendant in the present case does not claim that the evidence is insufficient to sustain his convictions, but rather that his convictions were legally inconsistent and that he was not on notice that he could be convicted of both charges. Throughout its analysis, the dissent appears at times to view the present case through the lens of a sufficiency of the evidence claim. This is evident in the dissent's hefty reliance on State v. Carter, supra, 317 Conn. at 856, 120 A.3d 1229, in which we resolved the defendant's claims on sufficiency grounds and not under the theory of the case doctrine.
As the defendant did not testify at trial, the statement was read into evidence by Detective George Tirado of the Waterbury Police Department, who initially interviewed the defendant and took his statement following the defendant's arrest on unrelated drug charges.
We agree with the state that the prosecutor's failure to specifically delineate the evidence between the charges is not equivalent to a prosecutor who does specify the evidence underlying a charge and then subsequently adopts a different evidentiary justification for that charge. Indeed, a jury may consider all evidence properly before it and, as we determined in part I of this opinion, the jury in the present case reasonably could have found that the defendant was guilty of both charges based on that evidence—regardless of how the state organized it. Furthermore, the state took no action at trial that would have induced the defendant to refrain from defending against all of the evidence that had been introduced or to believe that the evidence introduced related to only one charge and not to the other. As the defendant was charged in a two count substitute information, and the state introduced evidence on both of the charges and did not foreclose the defendant's reliance on that evidence in any manner, the defendant should have been alerted that he would have to defend against both charges.
Third, the court's jury instructions, as a reflection of the charging document, demonstrate that the defendant had notice of his potential to be convicted of both offenses. In delivering its instructions, the trial court informed the jury that the defendant was “charged with two crimes” and instructed the jury to determine “whether the accused is guilty or not guilty of each of the crimes charged in the information and whether your verdict is unanimous as to each charge.” The trial court then explained the elements of both reckless and intentional assault to the jury. When the trial court asked both counsel if they had any comments or objections to the jury instructions as they were delivered, neither counsel objected.
Thus, the trial court's jury instructions regarding the two charges reaffirm their status in the substitute information as two separate and distinct charges, rather than charges in the alternative. In explaining the two charges to the jury, the trial court never stated or implied that the two offenses were prosecuted in the alternative, and that the jury would have to make a decision between the charges if it were to find the defendant guilty. Although the Appellate Court correctly recognized that the trial court never explicitly informed the jury that it could deliver a guilty verdict on both charges, it also never instructed the jury that it could find the defendant guilty only on one charge but not the other. State v. King, supra, 149 Conn.App. at 366, 87 A.3d 1193. Additionally, had either the state or the defendant disagreed with the trial court's instructions on the charges, counsel had the opportunity to object or to ask the court to clarify its instructions, yet they did not do so. The trial court's instructions did recognize, however, that there were two charges, and instructed the jury to reach a verdict on both charges. Thus, on the basis of the charges listed in the substitute information, the evidence introduced by the state at trial, and the trial court's jury instructions on the charges, the defendant had sufficient notice that he could be convicted of both intentional and reckless assault.
Although not reflected in the jury instructions, it was evidently the understanding of the trial court that the defendant was being prosecuted on both charges and could be convicted of both. While discussing with the defendant his decision not to testify, the trial court outlined the possible sentences the defendant was facing if convicted and informed the defendant what his potential sentence would be if convicted of both charges listed in the substitute information.
Finally, because the defendant, the Appellate Court, and the dissenting justices all rest their conclusions on the due process claim in part on the content of the prosecutor's closing argument, we briefly address the significance of closing argument in this context. See id., at 373, 87 A.3d 1193. In addition to the substitute information, the state's reliance on the evidence presented at trial, and the jury instructions, the state's closing argument is another factor that is relevant to reviewing courts when determining whether the state presented a particular theory of the case at trial. See Dunn v. United States, supra, 442 U.S. at 106 n. 4, 99 S.Ct. 2190 ; Cola v. Reardon, 787 F.2d 681, 694 (1st Cir.) (“summation is one of various factors that must be considered in inquiries under Dunn ”), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986). Summation, therefore, can often provide a reviewing court with needed clarity in those cases where the state's theory at trial is not clear upon review of the other factors. Although closing arguments are one of several factors we examine in a theory of the case analysis, we also recognize that closing arguments are often ambiguous and imprecisely phrased given that most attorneys do not appear before the jury like an actor on the stage with every word, phrase, and inflection memorized and exhaustively rehearsed in advance. See State v. Warholic, 278 Conn. 354, 368, 897 A.2d 569 (2006) (“closing arguments of counsel ... are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear” [internal quotation marks omitted] ).
When examining the evidence at trial, we may also consider how the state presented and relied on that evidence during any “legal argument” on dispositive motions. State v. Robert H., supra, 273 Conn. at 83, 866 A.2d 1255. Such an inquiry falls within the purview of our analysis of how the state relied on the evidence at trial and is therefore distinct from our examination of the state's closing arguments. Our decision in Robert H. is illustrative of this approach. In Robert H., the defendant moved for a judgment of acquittal following the close of the state's case and prior to presenting his own defense. Id., at 61, 866 A.2d 1255. In argument in response to the defendant's motion, the prosecutor articulated the exact evidentiary bases supporting each charge against the defendant. Id., at 61–62, 866 A.2d 1255. Accordingly, the state was thereafter bound by the theory of the defendant's guilt that it presented in its legal argument against the defendant's motion. Id., at 84–85, 866 A.2d 1255.
In the present case, the defendant relies on a statement that the prosecutor made during closing argument. That statement, however, was ambiguously phrased in such a way that makes it difficult for us to draw any definite conclusions from the closing argument regarding the state's theory of the case. The prosecutor briefly touched on the two charges while addressing the jury during summation: “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 ... you would look more to the assault [charge], reckless indifference.” It is somewhat ambiguous as to what the prosecutor was actually attempting to convey to the jury with this statement. Had the prosecutor meant to frame the charges in the disjunctive, she could have clearly stated to the jury that crediting the defendant's statement would support a conviction of reckless assault whereas crediting the testimony of the victim, Neri, and Papp would support a conviction of intentional assault. Likewise, the prosecutor could have stated that the evidence overall was sufficient to demonstrate the defendant's guilt as to both charges and that if the jury were to credit the defendant's statement and the witnesses' testimony, the defendant could be convicted of both offenses. As stated, however, the prosecutor's words did not clearly convey either of these options to the jury. The Appellate Court interpreted these remarks to conclude that the state had prosecuted its case in the disjunctive and that the defendant could be convicted of only one offense or the other. State v. King, supra, 149 Conn.App. at 373, 87 A.3d 1193. It is apparent, however, that the Appellate Court's blending of its due process and legal consistency analyses had the unintended consequence of improperly refocusing the target of its inquiry. The Appellate Court determined that the state's failure to marshal the evidence in a particular manner during closing argument for the jury amounted to a lack of sufficient notice for the defendant. Id., at 373–74, 87 A.3d 1193. In doing so, the Appellate Court heavily relied on the content of the prosecutor's closing argument to support its conclusion that the two charges were prosecuted in the disjunctive. Id., at 373, 87 A.3d 1193.
The prosecutor's statement that the Appellate Court found to be determinative is an isolated, ambiguous statement made to the jury. That statement alone, when placed in the context of the entire trial—the substitute information, the evidence presented by the state, the court's jury instructions—cannot serve as a basis for us to conclude that the defendant had no notice of the charges against him. A decision reversing the defendant's convictions on the basis of one unclear statement and against the combined weight of the information, evidence, and jury instructions would therefore rest on an infirm foundation. We have never held that a prosecutor's single, unclear statement during closing argument can deprive a defendant of his due process right to notice. For us to do so would grant a windfall benefit to the defendant completely incommensurate with the harm—if any—suffered due to a prosecutor's lack of clarity during closing argument. This is particularly apparent in the present case, where the prosecutor's statement was a comment on the law that the jury was to apply, and the trial court specifically instructed the jury that it was to rely on the statements of law pronounced by the trial court and not the attorneys.
We respectfully disagree with the approach of the dissent, which relies solely on the prosecutor's statement during closing argument to the exclusion of the contents of the substitute information and the jury instructions and which does not address the state's reliance on the evidence introduced at trial.
Indeed, the trial court even interrupted the prosecutor's closing argument to ensure that the jury understood this distinction once the prosecutor began to comment on the law of the case during her argument.
In conclusion, when viewed in the context of the substitute information, the state's evidence at trial, and the jury instructions, the defendant had sufficient notice that he could be convicted of both reckless and intentional assault. Accordingly, the manner in which the defendant was convicted satisfies the requirements of due process.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to render judgment affirming the judgment of the trial court.
In this opinion ROGERS, C.J., and ZARELLA and EVELEIGH, Js., concurred.
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), 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, 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. 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, at 373, 87 A.3d 1193. Because I would affirm the judgment of the Appellate Court, I respectfully dissent.
General Statutes § 53a–59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument ... or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person....”
I emphatically disagree with the majority's legal inconsistency analysis to the extent that it relies on a factual predicate, embraced by the trial court in ruling on the defendant's postverdict motions, that the victim's four stab wounds resulted from two separate acts by the defendant, the first act inflicting one wound recklessly, followed by an intentional act that inflicted three more wounds. In my view, consideration of this multiple act factual predicate is purely academic in light of the state's actual theory of the case. Specifically, I agree with the Appellate Court's conclusion, not challenged by the majority, “that the evidence was not presented at trial in a manner suggestive of more than one assault. In order to affirm the defendant's conviction, we would have to find that the prosecutor presented the stabbing as two offenses; one committed intentionally and another committed recklessly. Nothing in the record supports such a conclusion.” State v. King, supra, 149 Conn.App. at 374, 87 A.3d 1193 ; see also id. (“[A]ll witnesses testified that the assault occurred quickly, within a short span of time and, essentially, as one continuous act. There was no testimony elicited at trial that there was any temporal break between knife thrusts or distinguishing one thrust from another in any manner.”). Although I agree with the majority that the legal inconsistency and theory of the case issues in this appeal are doctrinally separate inquiries, I nevertheless agree with the defendant that, as a practical matter, the legal consistency of the verdict must be considered in light of the state's theory of the case at trial. In my view, the Appellate Court's analysis reflects that reality, rather than use a kaleidoscopic lens of post hoc rationalization that runs far afoul of the due process theory of the case principles set forth in, for example, Dunn v. United States, 442 U.S. 100, 106–107, 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). See State v. King, supra, at 372–74, 87 A.3d 1193.
I note that the Appellate Court decided this case without benefit of our recent decision in State v. Nash, supra, 316 Conn. at 668, 114 A.3d 128, which rejected a defendant's argument “that two convictions are mutually exclusive if they require the jury to find that a defendant simultaneously acted intentionally and recklessly and, in doing so, caused the same result to the victim.” We concluded instead that “[t]he relevant inquiry in determining whether two convictions are mutually exclusive is whether the opposing mental states relate to the same result, not whether both convictions relate to the same injury.” Id. In Nash, we held that the evidence and the state's theory in a case wherein the defendant retaliated against a person for spreading rumors about him by firing several shots into the second story of that person's home, striking that person's sister, supported convictions of both intentional and reckless assault in violation of § 53a–59 (a)(1) and (3). Id., at 668–69, 114 A.3d 128. We concluded that “the defendant's convictions for intentional and reckless assault in the first degree are not legally inconsistent because the two mental states required to commit the offenses relate to different results. More specifically, in order to find the defendant guilty of those offenses, the jury was required to find that the defendant intended to injure another person and that, in doing so, he recklessly created a risk of that person's death. In 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. In other words, the jury could have found that the defendant intended only to injure another person when he shot into [the sister's] bedroom but that, in doing so, he recklessly created a risk of that person's death in light of the circumstances surrounding his firing of the gun into the dwelling.” (Footnotes omitted.) Id., at 666–67, 114 A.3d 128.
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. at 106, 99 S.Ct. 2190, 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, 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. at 82, 866 A.2d 1255. “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.
These due process principles keep us from evaluating the sufficiency of the evidence in a “vacuum” when applying the “well established principles” that “when evaluating the evidence in support of a conviction, we generally do not confine our review to only that evidence relied on or referred to by counsel during the trial. Rather, we construe all relevant evidence in the record, as well as the reasonable inferences drawn therefrom, in a light most favorable to sustaining the verdict.... Furthermore, we defer to the [fact finder's] assessment of the credibility of the witnesses based on its first hand observation of their conduct, demeanor and attitude.... We also assume that the fact finder is free to consider all of the evidence adduced at trial in evaluating the defendant's culpability, and presumably does so, regardless of whether the evidence is relied on by the attorneys.” (Citations omitted; internal quotation marks omitted.) State v. Robert H., supra, 273 Conn. at 81–82, 866 A.2d 1255.
“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. at 82–83, 866 A.2d 1255. 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, at 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 conclusion that 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. at 666–67, 114 A.3d 128 (“[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. 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. 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....
Beyond the simply stated substitute information, the trial court instructed the jury in relevant part that the defendant “is charged in two counts in the information. That is legal language for saying that he's charged with two crimes. In count one of the information, the defendant is charged with the crime of assault in the first degree in violation of [§ 53a–59 (a)(1) ]. If you unanimously find that the state has proven beyond a reasonable doubt each of the essential elements of this crime and disproven beyond a reasonable doubt the justification of self-defense, you shall find the defendant guilty of the crime charged in count one of the information. If you unanimously conclude that the state has failed to prove beyond a reasonable doubt any of the elements of this offense or failed to disprove self-defense, then you shall find the defendant not guilty of the crime charged in count one.
“In count two of the information, the defendant is charged with the crime of assault in the first degree in violation of [§ 53a–59 (a)(3) ]. If you unanimously find that the state has proven beyond a reasonable doubt each of the essential elements of this crime and disproven beyond a reasonable doubt the justification of self-defense, you shall find the defendant guilty of the crime charged in count two of the information. If you unanimously conclude that the state has failed to prove beyond a reasonable doubt any of the elements of this offense or failed to disprove self-defense, then you shall find the defendant not guilty of the crime charged in count two.
“When you return to the courtroom, you will be asked whether the accused is guilty or not guilty of each of the crimes charged in the information and whether your verdict is unanimous as to each charge.”(Emphasis added.)
After providing this overview of the charges, the trial court then instructed the jury as to the specific elements of intentional and reckless assault in the first degree, without using any transitional language specifically instructing the jury that it could find the defendant guilty of either or both charges.
I agree with the majority that the state intended to “try both charges in the substitute information,” and that the information fulfilled its purpose of informing the defendant that he was charged with both intentional and reckless assault. I disagree, however, with the majority's criticism that I, reach an “unsupported conclusion” that improperly “discount[s]” the significance of the information and jury instructions on the ground that they “follow a similar format in every case,” in a manner that “dramatically and unnecessarily narrow[s] the ken of our due process inquiry in this context.” See footnote 8 of the majority opinion. Given the various interpretations that could be ascribed to the evidence adduced in this trial that supported either of the offenses charged, I view the prosecutor's summation as presenting her view of what the state ultimately hoped to accomplish at the trial, once the evidence was actually put before the jury.
“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. ” (Emphasis added.)
With respect to the defendant's statement, admitted into evidence through the testimony of a police detective, the prosecutor argued that the defendant had said: “[Y]es, I stabbed [the victim]. He talks about a gun. He's the only person that talks about a gun. And there will be a self-defense charge given, but the first thing you have to believe is did [Neri] have a gun? No one else says that but [the defendant] and he has an interest in the outcome of the case.... It's an uncorroborated explanation by [the defendant] after he's had time to think.”
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 arguing that the version of events set forth in the defendant's statement gave rise to the duty to retreat, thus defeating his justification of self-defense. The prosecutor also argued that there was no evidence of a gun, as claimed in the defendant's statement, and that the defendant's self-defense justification was unbelievable, asking: “Does [it] make any sense ... to protect yourself from a gun with a knife?”
The defendant advanced a theory of self-defense, positing that he picked up a knife to use in self-defense after Neri had threatened him with a gun during the dispute over the $10. The defendant argued that the evidence did not support the prosecution's argument that he “came [into the apartment] and automatically [stabbed the victim multiple times], because [she] didn't sit down quick enough,” asking: “Does that make sense? Or does it make sense what [the defendant] said to the police the next day or that same day?” The defendant argued that the victim got “in the middle of it” and was stabbed when the defendant used a knife to defend himself from the gun wielding Neri. The defendant emphasized that the more sensible version of the events was that this was not “an unprovoked stabbing” over $10, but that the fight, “where the apartment [was destroyed] and the dresser [was pushed] over and [the victim intervenes and] gets stabbed in the process,” was “part of a larger ... issue....”
Relying on these facts, the defendant argued: “I want you to use your common sense when you think about this case, what the evidence was. Does it make sense that this was an unprovoked stabbing or does it ring true to what my client is telling you in his statement? Does that make more sense, that this was a brawl, a fight between [Neri] and my client, after [Neri] threatened him with a gun, and ... that this was essentially an accident? She got in the middle. [The victim] got in the middle of [Neri] and [the defendant] and that's how she got stabbed. If you do that, I am confident that you will return a verdict of not guilty.”
The prosecutor continued: “Yes, [the victim] said it was an accident. I got in the middle of things. She got in the middle of [Neri] and [the defendant]. She tried to diffuse the situation. ‘No one needs to die tonight,’ and she got stabbed. She put herself in the middle of that situation, not—not literally in the middle of the knife-swinging, but she says I put myself in the middle of something.”
Ultimately, the prosecutor concluded her rebuttal argument by stating that: “I believe we have proven to you beyond a reasonable doubt assault first with a dangerous instrument. ”(Emphasis added.)
I conclude that there is nothing in the prosecutor's summation that remotely hints that the state presented to the jury a “coherent theory of guilt ... in a focused or otherwise cognizable sense”; (internal quotation marks omitted) State v. Robert H., supra, 273 Conn. at 83, 866 A.2d 1255 ; that the defendant was guilty of both intentional and reckless assault. Beyond the prosecutor's explanation before the jury of why there were two charges in this case, which is a statement that plainly contemplates a case charged in the alternative depending on the jury's finding as to the applicable mental state, her statement with respect to the state's desired verdict indicates just such a unitary view of the case. The prosecutor did not ask for a conviction on “both” or “all counts,” and her description of the verdict desired was in the singular insofar as she concluded both her closing and rebuttal arguments by asking the jury to convict the defendant of “assault in the first degree, dangerous instrument” and “assault first with a dangerous instrument” respectively. Moreover, the prosecutor paid minimal attention to the recklessness charge, and did not spend any time describing the elements of the offense of reckless assault in an attempt to relate them to the evidence in the record; it appeared to be a mere afterthought. Thus, I believe that the majority stretches the word “ambiguous” beyond all comprehension when it uses it to describe the prosecutor's closing argument, and calls it “difficult ... to draw any definite conclusions from the closing argument regarding the state's theory of the case.”
The majority acknowledges that a “[s]ummation ... can often provide a reviewing court with needed clarity in those cases where the state's theory at trial is not clear upon review of the other factors.” The majority's actual willingness to relieve the state from the theory put forth in its closing arguments is, however, at drastic odds with nearly one decade's worth of case law since State v. Robert H., supra, 273 Conn. at 83, 866 A.2d 1255, which applies the due process principles of Dunn v. United States, supra, 442 U.S. at 106–107, 99 S.Ct. 2190. For example, in State
I acknowledge the state's argument that cases such as State v. Fourtin, supra, 307 Conn. at 209–10, 52 A.3d 674, which consider closing arguments to divine the theory of the case, are an improper extension of the theory of the case doctrine from Cola v. Reardon, supra, 787 F.2d at 693–94. The state argues that the notice purpose of the doctrine requires the state to do no more than be consistent with the theories posited before the defendant puts on his case, such as through the substitute information, legal arguments in response to motions for judgment of acquittal, and confirming jury instructions. I disagree. First, the federal decisions that this court relied upon in State v. Robert H., supra, 273 Conn. at 82–83, 866 A.2d 1255, reviewed the summations of the prosecutor and defense counsel, along with the charging instrument and jury instructions, to determine the prosecution's theory of the case. See Dunn v. United States, supra, 442 U.S. at 106–107, 99 S.Ct. 2190 ; Cola v. Reardon, supra, at 693. Second, particularly in cases like this one, wherein the substitute information and instructions are fairly open—ended, adoption of the state's position in this appeal—which seemingly is endorsed by the majority's relegation of closing arguments only to a clarifying role—would leave prosecutors free to argue virtually anything in order to obtain a conviction and then save it on appeal, however factually or legally flawed the trial prosecutor's legal theory might be. Most significantly, it also would deprive the defendant of the crucial opportunity to identify and counter significant aspects of the state's case before the jury renders its verdict.
v. Fourtin, supra, 307 Conn. at 188, 52 A.3d 674, we considered whether there was sufficient evidence of “physical helplessness” to sustain a defendant's conviction for attempt to commit sexual assault in the second degree in violation of General Statutes § 53a–71 (a)(3). In particular, we determined “whether, at the time of the alleged sexual assault, the victim was physically able to convey a lack of consent or unwillingness to an act.” Id., at 207, 52 A.3d 674. We held that the theory of the case doctrine barred the state from making an appellate argument that the severely disabled victim's acts of biting, scratching, screeching, kicking, or groaning were not communicative, and were “ ‘merely emblematic of her multiple disabilities,’ ” reasoning as follows: “At no time during the trial, including cross-examination, closing argument or rebuttal, did the state challenge or dispute testimony establishing that the victim communicated displeasure through biting, kicking, scratching, screeching or groaning. Indeed, the state itself elicited much of this testimony, albeit in an attempt to establish for the jury that the victim was credible and perfectly capable of communicating her likes and dislikes. Nor did the state contend or otherwise suggest that these behaviors were simply manifestations of the victim's disabilities rather than volitional, communicative acts intended to express displeasure. Likewise, the state did not proceed on the theory that the victim's behaviors merely reflected generalized anger or frustration.
“To the contrary, the prosecutor expressly told the jury during closing argument that the victim, ‘according to all accounts, was very vocal, very active, and, if in fact she felt that ... [people were not understanding] what she was saying, I believe [that] everybody [who has] testified here [has indicated that] she would throw up her arms and say “stop.” ’ During closing argument , the prosecutor also noted that the victim was ‘very limited in terms of ... what type of information she can pass on to you,’ and that she had ‘some difficulty expressing herself....’ At no time, however, did the state even raise the notion that the victim was unable to communicate an unwillingness to an act.” (Footnote omitted; emphasis altered.) Id., at 208–209, 52 A.3d 674. Similarly, in State v. Carter, supra, 317 Conn. at 855, 120 A.3d 1229, we recently observed that “neither the substitute information nor the court's instructions to the jury identified the target of the attempt to commit assault charge” arising from his act of pointing a gun at a police officer. We relied, however, on the state's closing argument as “conclusively demonstrat[ing]” its theory of the case, namely, that the police officer was the person “at whom the defendant's intent was directed.” Id. We observed that the Appellate Court's view that the case was a theory of mistaken identity or transferred intent arising from the defendant's previously stated intention to shoot a “ ‘white dude’ ” in a bar was “a narrative in direct conflict with the one advanced in the state's closing argument.” Id., at 855–56, 120 A.3d 1229 ; see also id., at 856, 120 A.3d 1229 (not considering whether Appellate Court's apparent theory of case doctrine violation required reversal of conviction because evidence was “sufficient to demonstrate the defendant's intent under the theory that the state argued to the jury”); State v. Webster, 308 Conn. 43, 57–59, 60 A.3d 259 (2013) (reviewing closing argument to determine whether state improperly raised theory of course of conduct leading to narcotics sale, rather than actual physical transfer, to sustain conviction of sale of narcotics). The majority's restrictive application of the theory of the case doctrine is, therefore, inconsistent with this court's actual practice in the decade since it decided State v. Robert H., supra, 273 Conn. at 83, 866 A.2d 1255. Guided by these recent Connecticut cases applying the theory of the case doctrine in connection with the state's closing arguments, I conclude that the state presented the charges of reckless and intentional assault to the jury as alternatives, rather than in an effort to obtain multiple convictions arising from the same act. As the defendant aptly observes, the state adopted a trial strategy in which it primarily argued that the defendant had “intentionally stabbed the victim four times,” but “hedged its bet” by positing that, “even on [the defendant's] version of the stabbing (which the state hotly disputed), he recklessly assaulted the victim.” Accordingly, I agree with the Appellate Court's conclusion that the theory of the case doctrine precludes the state from advancing arguments on appeal that would save the defendant's convictions from reversal. See State v. King, supra, 149 Conn.App. at 374–75, 87 A.3d 1193. I would, therefore, affirm the judgment of the Appellate Court. Accordingly, I respectfully dissent.
Numerous recent decisions from the Appellate Court hold similarly. See, e.g., State v. Davis, 163 Conn.App. 458, 465–69, 136 A.3d 257 (2016) (noting lack of specificity in information and relying on closing argument to conclude that state's theory of murder case was accessorial liability or liability under Pinkerton v. United States, 328 U.S. 640, 647–48, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), rather than liability as principal); State v. James E., 154 Conn.App. 795, 834–35, 112 A.3d 791 (2015) (rejecting claim that state should be precluded from defending double jeopardy claim on appeal arising from two convictions of assault of elderly person by arguing that “there were two separate and distinct crimes” because, inter alia, “the prosecutor did not present the two ... charges as alternatives during closing argument”).
The majority posits that the prosecutor's statement was “isolated” and “ambiguous,” and that “[w]e have never held that a prosecutor's single, unclear statement during closing argument can deprive a defendant of his due process right to notice. For us to do so would grant a windfall benefit to the defendant completely incommensurate with the harm—if any—suffered due to a prosecutor's lack of clarity during closing argument. This is particularly apparent in the present case, where the prosecutor's statement was a comment on the law that the jury was to apply, and the trial court specifically instructed the jury that it was to rely on the statements of law pronounced by the trial court and not the attorneys.” (Emphasis omitted.) I disagree with the majority's characterization of the state's argument as “isolated,” “ambiguous,” and a pure statement of the law. The prosecutor's closing arguments in this relatively simple case were short, with the initial summation occupying only seven pages of transcript and the rebuttal barely two pages. Thus, the prosecutor's sole, but clear, explanation of why the state pursued two charges against the defendant is not “isolated” given the relative brevity of this argument. Further, that portion of the prosecutor's argument was not a purportedly objective statement of the black letter law, which is, of course, the province of the trial court, but rather, an articulation of the state's strategy for obtaining a conviction even if the jury were to credit the defendant's statement or portions thereof.
Finally, I disagree that the defendant would obtain any kind of “windfall” as a result of my conclusion. Insofar as the trial court sentenced the defendant concurrently on the two convictions, all the state had to do to avoid reversal on appeal was ask the trial court to vacate one of them in response to the defendant's postverdict motions, and the defendant would not have served one less day in prison. Cf. State v. Nash, supra, 316 Conn. at 669–70 n. 19, 114 A.3d 128 (noting that defendant did not raise double jeopardy claim and that trial court had merged intentional and reckless assault convictions, and had sentenced him only on intentional assault conviction); see also State v. Miranda, 317 Conn. 741, 755–56, 120 A.3d 490 (2015) (discussing use of contingent vacatur of convictions in lieu of merger as double jeopardy remedy). Second, subject to double jeopardy protections not at issue in this appeal, my conclusion does nothing to preclude the state from obtaining multiple convictions under the same statute potentially even for the same act, so long as the state actually pursues that strategy at trial. See, e.g., State v. Wright, 319 Conn. 684, 696, 127 A.3d 147 (2015) (state may obtain multiple convictions for aggravated sexual assault of minor for single act that violates General Statutes § 53a–70c [a][1] and [6] without committing double jeopardy violation).
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