STATE OF CONNECTICUT v. CORNELIUS FLOWERS
(SC 17334)
Supreme Court of Connecticut
Argued January 4—officially released June 13, 2006
Borden, Katz, Palmer, Vertefeuille and Zarella, Js.
The plaintiffs repeatedly have insinuated, both in their brief and at oral argument before this court, that the board of aldermen‘s granting of the DelMonaco partnership‘s application for a planned development district was the result of political lobbying, improper negotiation, and corruption that allowed the partnership to curry favor with the city‘s legislative body. There is no support fоr these allegations in the record. The mere possibility that § 65 of the New Haven zoning ordinance could be misused in a particular case does not mean, in the absence of any evidence to the contrary, that it was misused in this case, or that authority for the ordinance is not present in the city‘s enabling legislation. The plaintiffs’ claim is based on nothing more than unsupported conjecture and innuendo.
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.
In this opinion the other justices concurred.
Denise B. Smoker, assistant state‘s attorney, with whom, on the brief, were John A. Connelly, state‘s
Opinion
KATZ, J. The defendant, Cornelius Flowers, appeals, following our grant of certification, from the judgment of the Appellate Court affirming the judgment of the trial court convicting the defendant of burglary in the first degree in violation of
The record reveals the following procedural history. The state charged the defendant in a three count, long form information. The first count of the information charged the defendant with burglary in the first degree in violation of
The jury was unable to reach a verdict on the two counts of attempt to commit assault in the first degree,
The Appellate Court opinion recites the following evidence presented to the jury. “On the night of August 4, 2000, the defendant went to the Malibu Club (club) in Waterbury, as did Stephen Alseph. Sometime later, [Stephen] Alseph‘s wife, Keisha Alseph, arrived at the club with her friends, Chantel Paris and Tierra Mourning. At closing time, approximately 2 a.m. on August 5, 2000, Stephen Alseph had an argument with Paris and Mourning in the parking lot of the club. Keisha Alseph left the club in the company of Paris and Mourning. Stephen Alseph left the club alone.
“Keisha Alseph and her friends arrived at the parking lot adjacent to the apartment at 163-4 Mark Lane about the same time Stephen Alseph did. Another argument ensued, and Paris struck Stephеn Alseph on the head with a beer bottle, causing a small cut. Paris and Mourning got into their vehicle and left. The Alsephs entered their apartment and prepared for bed.
“Stephen Alseph returned to his apаrtment where his wife was waiting. The police arrived about five minutes later. The police found Stephen Alseph bleeding from the arms, face and head. Keisha Alseph had cuts on her stomach and arms. Stephen Alseph was taken to St. Mary‘s Hospital where he received sutures for his head wound. Keisha Alseph informed the police that the defendant was one of the three assailants. She recognized him because he had worked with one of her cousins at a McDonald‘s restaurant. She also implicated Paris and Mourning.
“A short while later, the police received a telephone call from Victoria Vasquez, the defendant‘s former girlfriend. Vasquez informed the police that at approximately 2:45 a.m., she began receiving telephone calls from the defendant. She said that he had called and immediately hung up. Vasquez stopped answering the telephone, and the defendant left messages on her answering machine to ‘stop playing games’ because he was ‘in trouble and needed her help.’ The defendant arrived at Vasquez’ home about fifteen minutes later. Vasquez refused to let the defendant inside because she was afraid of him and had a protective order against
“The police went to 72 Wall Street and found the defendant and his cousin, Devon Hicks, hiding under a bed in the first floor apartment. The defendant identified himself as Thomas Flowers. The police separately transported Keisha Alseph and Stephen Alseph to the Wall Street apartment to identify the two men who had been found hiding there. Keisha Alseph and Stephen Alseph identified the defendant and Hicks as two of the men who had assaulted them that night. They did not waver in their identification of the defendant, whom they also identified at trial. The defendant was arrested.
“A few days after his arrest, the defendant met with Vasquez at a commuter parking lot in Cheshire with assistance from Hicks. The defendant wanted to know why Vasquez had called the police. The defendant and Vasquez met again on February 13, 2001, the day before Vasquez was to report to the office of the state‘s attorney pursuant to a subpoena issued in the case against Hicks. The defendant asked Vasquez to lie for him, to tell the police that he was on foot that night and that he was with her at the time of the burglary. Vasquez initially agreed to the defendant‘s request because she was trying to work things out with him for the sake of their child. Five months later, however, Vasquez told the prosecutor that the defendant had come to her house in a light colored automobile and that he had not been with her eаrlier [on the evening of the burglary]. The defendant subsequently telephoned Vasquez and threatened her not to testify against him.
“The defendant testified at trial to establish his alibi that he was not present during the break-in. He testified that he had been at the club on the night in question
After the jury found the defendant guilty of burglary in the first degree; see footnote 1 of this opinion; the defendant appealed from the trial court‘s judgment of conviction to the Appellate Court, claiming, inter alia, that, pursuant to the trial court‘s instructions, in order to find the defendant guilty of burglary in the first degree, the jury would have to have found that, when he unlawfully entered the building, the defendant had intended to commit the inchoate crime of attempted assault.3 Specifically, the defendant claimed that, by charging that the state had to prove that the defendant unlawfully had entered the building with the intent to commit an attempted assault, the court, in effect, charged the jury that to convict the defendant it had to prove that he unlawfully had entered the premises intending only to attempt an assault, but not to complete it. State v. Flowers, supra, 85 Conn. App. 700-701. Thus, the defendant contended that the trial court‘s instruction would have permitted the jury to convict the defen-
Although the defendant had not raised that claim before the trial court, the Appellate Court concluded that the unpreserved claim could be reviewed under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),4 but that it must be rejected. State v. Flowers, supra, 85 Conn. App. 705. That court reasoned that it was not reasonably possible that the jury had been misled by the instruction under the facts of the case. Id., 705-706. This certified appeal followed.
On appeal to this court, the defendant contends that the Appellate Court‘s judgment was improper because the trial court instructed the jury on a theory of liability that is not cognizable. He contends that, because the trial court improperly had instructed the jury5 that it
We begin with our well settled standards by which we review the trial court‘s instructions to the jury. “It is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . The due process clause of the fourteenth amendment [to the United States constitution] protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to cоnstitute the crime with which he is charged. . . . Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Citations omitted; internal quotation marks omitted.) State v. Denby, 235 Conn. 477, 483-84, 668 A.2d 682 (1995).
If an improper jury instruction is of constitutional magnitude, “the burden is on the state to prove harmlessness beyond a reasonable doubt.” State v. Spillane, 255 Conn. 746, 757, 770 A.2d 898 (2001). “An alleged defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled. . . . In performing harmless error analysis, we keep in mind that [i]n determining whether it was indeed reasonably possible that the jury was misled by the trial court‘s instructions, the charge to the jury is not
Finally, “a jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error . . . .” (Emphasis in original; internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 738, 759 A.2d 995 (2000), quoting Neder v. United States, 527 U.S. 1, 17, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999).
Before addressing what is at issue in this case, it is useful to identify what is not at issue. First, the state does not dispute that it would be improper to allow the jury to find the defendant guilty of burglary if it found that he had entered the apartment not intending to complete a crime therein, but rather intending just to attempt to commit a crime. In other words, the state does not contest that a theory of liability requiring a finding that the defendant intended an unintentional result from his conduct is not cognizable. See State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 (1986) (conspiracy to commit arson in third degree not cognizable because arson requires reckless mental state); State v. Almeda, 189 Conn. 303, 307, 455 A.2d 1326 (1983) (attempted manslaughter not cognizable because not possible to have specific intent to commit unintentional killing), on appeal after remand, 196 Conn. 507, 493 A.2d 890 (1985);6 see also State v. Crosswell, 223 Conn. 243, 263, 612 A.2d 1174 (1992) (“persons cannot attempt or conspire to commit an offense that requires an unintended result” [internal quotation marks omitted]). Second, the state does not challenge the defendant‘s assertion that the trial court did in fact provide such an improper instruction. Third, the state does not challenge that the first two prongs of State v. Golding, supra, 213 Conn. 239, were satisfied, thus permitting review of this unpreserved claim. See footnote 4 of this opinion.
Rather, the state‘s response to the defendant‘s claimеd impropriety is that, despite any impropriety in the trial court‘s instructions, it is not likely that they had an effect on the jury. See State v. Alston, 272 Conn. 432, 447, 862 A.2d 817 (2005) (recognizing that reviewing court considers effect of charge on jury rather than component parts). Essentially, the state contends that it was not reasonably possible that the jury was misled by the instruction because of the trial court‘s subsequent correct statement of the law. According to the state, although “the court did instruct the jury that the state had to prove that the defendant entered the [Alsephs‘] apartment with the intent to commit the crime of attempted assault, the court‘s last statement to the jury on this issue was that any crime, felony or
Additionally, the state points to its closing arguments to the jury, which focused on Keisha Alseph‘s beliefs that her friends, Paris and Mourning, had set up the burglary and the assault of her husband and that, when the defendant and the other two assailants entered the Alsephs’ apartment, they had a commonality of purpose and were intending to inflict serious physical injury on Stephen Alseph. Finally, the state contends that the jury was not misled by the trial court‘s improper instructions because both an attempt to commit an assault and a completed assault require that the actor intended to bring about the elements of the completed assault. Therefore, according to the state, either way, the jury knew it had to find that the defendant had intended to assault Stephen Alseph.
We disagree with the state that it was not reasonably possible that the jury wаs misled. Intentional conduct is defined as conduct “with respect to a result or to conduct described by a statute defining an offense when [a person‘s] conscious objective is to cause such result or to engage in such conduct . . . .”
In this case, when the trial court instructed the jury on the element of intent in connection with the charge of burglary, it told the jury that it had to decide whether “the unlawful entry was [e]ffected or occurred with the defendant‘s intent to commit a crime in the building. Here the crime being attempted [was] assault in the first degree.” This statement was soon thereafter reinforced when the court reminded the jury that to find the defendant guilty it had to find “that the unlawful entry was [e]ffected or occurred with the defendant‘s intent to commit a crime in that building, and I said that the specific crime is attempted assault . . . .” The court never corrected those statements. The only other guidance the court provided to the jury was that, when he entered the Alsephs’ apartment, the defendant had to have an intent to commit a crime, a felony or a misdemeanor, other than the crime of burglary.
In essence, by charging that the state had to prove that the defendant unlawfully entered the building with the intent to commit an attempted assault, the court charged the jury that the state had to prove that the defendant “unlawfully entered the premises intending only to attempt an assault but not to complete it. Thus, the defendant would have had no intent actually to commit the underlying crime оf assault and, therefore, he did not enter the building with the intent to commit a crime.” State v. Flowers, supra, 85 Conn. App. 707 (Flynn, J., dissenting).
“We repeatedly have stated that [t]he jury [is] presumed to follow the court‘s directions in the absence of a clear indication to the contrary.” (Internal quotation marks omitted.) State v. Ancona, 270 Conn. 568, 616, 854 A.2d 718 (2004), cert. denied, 543 U.S. 1055, 125 S. Ct. 921, 160 L. Ed. 2d 780 (2005); accord State v. Fields, 265 Conn. 184, 207, 827 A.2d 690 (2003); State v. Negron, 221 Conn. 315, 331, 603 A.2d 1138 (1992). With no other direction from the trial court correcting its improper instruction, the presumption that the jury followed the court‘s instruction and, accordingly, found the defendant guilty of first degree burglary based on attempted assault is essentially irrebuttable, the state‘s three contentions to the contrary notwithstanding.
First, citing to State v. Prioleau, 235 Conn. 274, 289-90, 664 A.2d 743 (1995), the state contends that, despite the aforementioned presumption, closing arguments of counsel can supplant the trial court‘s essential role of providing proper jury instructions. Significantly, in that case, although we did consider arguments of counsel to determine whether an inadequacy in the trial court‘s instructions played a critical role, the trial court‘s impropriety did not address a fundamental misstatement of the law on an essential element of the offense. Specifically, in Prioleau, we agreed with the defendant that the trial court‘s instruction on self-defense inadequately had informed the jury of its need to evaluate the defendant‘s subjective belief as to the amount of force necessary to repel the murder victim‘s alleged attack. Id., 285. We concluded, however, that, “from the facts, the issues and the instructions as a whole, there is no reasonable possibility that this infirmity misled the jury to [reach] an improper verdict.” Id. We noted that the state neither presented evidence, nor argued to the jury, that the defendant was guilty of murder because he had used an excessive degree of force in protecting himself. Id., 289-90. Accordingly, the critical issue for the jury to decide was whether the defendant reasonably believed, when he shot the viсtim, that the victim was about to use deadly force or inflict great bodily harm upon him. Id., 290. The defendant had acknowledged the propriety of the trial court‘s instruction on that feature of self-defense. We therefore
Second, the state contends that, even if the jury were otherwise predisposed to follow the trial court‘s earlier improper instructions, the trial court‘s final statement to the jury on the subject—that the object crime of the burglary charged by the state was either a felony or
Finally, the state contends that, because both an attempted assault and a completed assault require an intent to bring about the completed assault, the court‘s improper charge that, when he entеred the Alsephs’ apartment unlawfully the defendant intended to commit an attempted assault, was harmless. We disagree. The instruction, that an intent to bring about the completed assault is a necessary element of attempted assault, was indeed provided to the jury in the context of the two attempted assault charges. Had the trial court charged the jury in connection with the burglary charge that, when the defendant illegally entered the building, he intended to commit an assault, but failed to instruct on the intent element required for an assault, reliance on the elements provided in the attempted assault instructions might have cured the omission. As we know, however, the trial court did not omit an intent instruction but, rather, added an improper attempt intent, which was not cured by its other instructions.8
The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the judgment of the trial court and to remand the case to that court for a new trial.
In this opinion BORDEN, PALMER and VERTEFEUILLE, Js., concurred.
ZARELLA, J., dissenting. The majority concludes that the jury likely was misled by the trial court‘s instruction that, to find the defendant, Cornelius Flowers, guilty of burglary in the first degree, the jury must determine, inter alia, that the defendant had entered the victim‘s apartment unlawfully with the intent to commit an attempted assault therein. Specifically, the majority concludes that the trial court‘s instruction improperly permitted the jury to find the defendant guilty of burglary in the first degree if it determined that the defendant “had entered the [victim‘s] apartment not intending to complete a crime therein . . . but rather intending just to attempt to commit a crime.” I would conclude, however, that it is not reasonably possible that the jury was misled by the trial court‘s improper instruction because both attempt to commit assault in the first degree;
To illuminate the flaws in the majority‘s reasoning, I first turn to
With this background in mind, I now address whether burglary with intent to commit attempted assault in the first degree is a cognizable crime.
The majority concludes, however, that a defendant who intends to commit attempted assault may intend “only to attempt an assault but not to complete it.” (Internal quotation marks omitted.) This conclusion finds no support in either law or logic. If a defendant does not intend to complete the crime of assault in the first degree, that is, if he does not intend to cause serious physical injury to another person, then he does not have the mental state necessary to attempt to commit assault in the first degree. See generally 22 C.J.S. 144, Criminal Law § 115 (b) (1989) (“‘attempt’ with respect to a
Moreover, the mental state necessary to attempt to commit assault in the first degree and the result of the completed crime are in perfect congruence. Thus, the present case easily is distinguishable from State v. Almeda, supra, 189 Conn. 303, and its progeny. In Almeda, the defendant, John A. Almeda, Jr., was convicted of attempt to commit manslaughter in the first degree in violation of
I еmphasize that it is immaterial, for purposes of this appeal, whether the jury reasonably could have found that the defendant ever had acted on his intent to cause serious physical injury to another person. See
Finally, I address the defendant‘s claim that, because the crime of burglary is an inchoate сrime in that it requires only an intent to commit a separate crime upon unlawful entry, the crime intended cannot be another
For the foregoing reasons, I would conclude that it is not reasonably possible that the jury was misled by the trial court‘s improper instruction. See State v. Chandler, 342 N.C. 742, 752, 467 S.E.2d 636 (1996) (trial court‘s improper instruction that burglary can be committed with intent to commit attempted larceny not plain error because, inter alia, “the crucial element in burglary is the intent to commit a larceny, which is the identical intent necessary to commit an attempted larceny“), cert. denied, 519 U.S. 875, 117 S. Ct. 196, 136 L. Ed. 2d 133 (1996). Viewing the trial court‘s instruction as a whole, I would conclude that it was adequate to explain to the jury that the defendant could not be found guilty of burglary in the first degree unless it determined that the defendant had entered the victim‘s apartment unlawfully with intent to cause serious physical injury to another person.3 Accordingly, I respectfully dissent.
Notes
”The first element the state must prove beyond a reasonable doubt is that the [defendant] had the kind of mental state required for the commission of the crime of attempted assault in the first degree.” (Emphasis added.)
The trial court thereafter instructed the jury on the essential elements of attempt to commit assault in thе first degree: “The defendant is charged with the crime of attempted assault in the first degree in violation of [§] 53a-59 (a) (4) of the Penal Code, which provides as follows—and I‘ve already defined ‘attempt’ for you, and you are to recall and apply that definition—a person is guilty of assault in the first degree when, with intent to cause serious physical injury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person.
“For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: one, that the defendant intended to cause serious physical injury to another person; two, that the defendant caused serious physical injury to another person to that person or another person; and three, that the defendant did so while aided by two or—here, in this case, while aided by two other persons actually present.” (Emphasis added.)
“For you to find the defendant guilty of the charge of burglary in the first degree, the state must prove the following elements beyond a reasonable doubt: That the defendant knowingly [made] . . . an unlawful entry . . . [and] entered the premises of 163-4 Mark Lane; that such premises constituted a building . . . and that the unlawful entry was [e]ffected or occurred with the defendant‘s intent to commit a crime in the building. Here, the crime being attempted [was] assault in the first degree. That is, in the course of committing the offense, the defendant intentionally inflicted or attempted to inflict bodily injury to someone . . . .” (Emphasis added.)
Following a sidebar conference, the court continued: “Such premises constituted a building . . . that the unlawful entry was [e]ffected or occurred with the defendant‘s intent to commit a crime in that building, and I said that the specific crime is attempted assault; and that in the course of committing that offense the defendant intentionally inflicted or attempted to inflict bodily injury to a person, here being [Stephen] Alseph. . . .
“You must further determine whether the unlawful entry was [e]ffected or occurred with the defendant‘s intent to commit a crime in that building. And I previously defined ‘intent’ for you and you will recall that definition and apply it here. And I‘ll just say briefly that intent relates to the condition of mind of the person who commits the act, his purpose in doing it.
“A person acts ‘intentionally’ with respect to a result or to conduct when his conscious objective is to cause such result or engage in such conduct. So you must further determine whether the unlawful entry was [e]ffected or occurred with the defendant‘s intent to commit a crime in that building, 163-4 Mark Lane. Furthermore, the necessary intent tо commit a crime must be an intent to commit either a felony or a misdemeanor other than the crime of burglary, and I charged you that as a matter of law that the crimes charged fit this category. . . .
“For you to find the defendant guilty of burglary in the first degree, certain additional aggravating factors must be proven beyond a reasonable doubt. One of the aggravating factors exists if the state proves that the defendant in the course of committing the offense intentionally inflicted or attempted to inflict bodily injury to someone, here, Stephen Alseph. ‘Bodily injury’ means impairment of physical condition or pain. The defendant need not have actually inflicted bodily injury on anyone as long as he attempted to inflict such injury on someone in the course of committing the crime—an act deemed to be in the course of an offense if it occurs in an attempt to commit the offense or flight after the attempt or commission.” (Emphasis added.)