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State v. Anthony V.
STATE OF CONNECTICUT v. ANTHONY V.*
(AC 45621)
Clark, Seeley and Palmer, Js.
Syllabus
Convicted, following a jury trial, of the crime of manslaughter in the first
degree with a firearm, the defendant appealed to this court. It was
undisputed that the victim was killed by a gunshot wound to the head
from the defendant’s replica Civil War era revolver. When he was interviewed by the police, the defendant contended that the victim had been
in the bathroom, using the toilet, while he was cleaning the revolver in
the bedroom. He further contended that, when he was holding the
revolver and walking into the bathroom for a napkin, he had tripped
and fallen toward the victim. In falling, he lost control of the revolver,
the barrel of which struck the victim’s head, and it accidentally discharged. At trial, the state produced uncontested evidence that the fatal
wound was inflicted by a single shot from the defendant’s revolver, the
revolver had an extremely light trigger pull, and the revolver had been
pressed against the victim’s head and behind her left ear when the gun
discharged. Held:
1. The defendant could not prevail on his claim that there was insufficient
evidence to support the judgment of conviction: the evidence and the
inferences that the jury reasonably could have drawn therefrom were
sufficient to support the state’s theory that the defendant intentionally
placed the loaded revolver against the victim’s head, including testimony
by the state medical examiner that the gunshot that killed the victim
was discharged while the muzzle of the revolver was flush against the
victim’s head, and the jury reasonably could have found that the likelihood of that occurring randomly or haphazardly, as the defendant
claimed, was slight; moreover, there was evidence that the defendant
and the victim had a volatile relationship, which was fueled by drug
and alcohol use, and the defendant’s actions with the revolver did not
display sound judgment; furthermore, the jury could have doubted the
veracity of the defendant’s statements concerning his handling of the
revolver the evening of the shooting, as the jury was not obligated to
accept the defendant’s version of the facts and reject the factual scenario
advanced by the state.
2. The trial court committed plain error in failing to instruct the jury on the
element of general intent, which was an essential element of the offense
of manslaughter in the first degree with a firearm: because the statements
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
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State v. Anthony V.
the defendant made to the police, if credited by the jury, supported his
contention that the revolver struck the victim’s head accidentally, the
defendant was entitled to a jury instruction that the state bore the
burden of proving that he had placed the revolver to the victim’s head
intentionally; moreover, the consequences of the court’s error were so
grievous as to be fundamentally unfair or manifestly unjust under the
circumstances of this case, as an instruction on general intent that
fully explained the requirement of volitional or deliberate conduct as
distinguished from conduct that was inadvertent or accidental was vital
to a fair trial and a reliable verdict; accordingly, the defendant was
entitled to a new trial.
Argued January 11—officially released August 13, 2024
Procedural History
Substitute information charging the defendant with
the crime of manslaughter in the first degree with a
firearm, brought to the Superior Court in the judicial
district of New Haven and tried to the jury before
Alander, J.; verdict and judgment of guilty, from which
the defendant appealed to this court. Reversed; new
trial.
Denis J. O’Malley III, assistant public defender, with
whom was Kevin Semataska, deputy assistant public
defender, for the appellant (defendant).
Danielle Koch, deputy assistant state’s attorney, with
whom, on the brief, were John P. Doyle, Jr., state’s
attorney, and Lisa D’Angelo and Adrienne Russo, assistant state’s attorneys, for the appellee (state).
Opinion
PALMER, J. The defendant, Anthony V., appeals from
the judgment of conviction, rendered after a jury trial,
of manslaughter in the first degree with a firearm in
violation of General Statutes §§ 53a-55a1 and 53a-55 (a)
1
General Statutes § 53a-55a provides in relevant part: ‘‘(a) A person is
guilty of manslaughter in the first degree with a firearm when he commits
manslaughter in the first degree as provided in section 53a-55, and in the
commission of such offense he uses, or is armed with and threatens the
use of or displays or represents by his words or conduct that he possesses
a pistol, revolver, shotgun, machine gun, rifle or other firearm. . . .’’
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State v. Anthony V.
(3). The defendant claims that (1) the evidence is insuf-
2
ficient to support his conviction and (2) the court’s
failure to instruct the jury on general intent constituted
plain error. Although we disagree with the defendant’s
claim of evidentiary insufficiency, we agree with his
claim of instructional error under the plain error doctrine. Accordingly, we reverse the judgment of the
trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
resolution of this appeal. Shortly before midnight on
Saturday, October 17, 2020, New Haven police officers
responded to a call reporting that an individual had
been shot in a local apartment. When the police arrived
at the apartment, they discovered the defendant, who
resided there, in a small bathroom,3 with blood all over
the floor, performing cardiopulmonary resuscitation
(CPR) on the victim. The victim, who resided with the
defendant and planned to marry him, had suffered a
gunshot wound to the head and was pronounced dead
at the scene by medical personnel. A handgun belonging
to the defendant was found on the bathroom floor and
seized by the police.
The defendant consented to three police interviews,
all of which were videotaped and, along with the interview transcripts, admitted as full exhibits at trial. In
his interview statements,4 the defendant consistently
2
General Statutes § 53a-55 provides in relevant part: ‘‘(a) A person is
guilty of manslaughter in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life, he recklessly engages in
conduct which creates a grave risk of death to another person, and thereby
causes the death of another person.’’
3
Evidence adduced at trial reveals that the bathroom, which included a
vanity, a toilet and a bathtub, was only about thirty-five square feet, measuring four feet, ten inches (the distance from the doorway to the wall behind
the toilet) by seven feet, three inches.
4
The interviews took place on October 18, 2020, the day after the victim’s
death, and on October 23, 2020, and January 29, 2021.
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State v. Anthony V.
maintained that the victim’s death was the result of a
tragic accident. More specifically, the defendant stated
that, just before bedtime, the victim was using the toilet
in the bathroom adjacent to the couple’s bedroom, with
the door open, when the defendant decided to wipe
down the loaded revolver that he kept in a box in the
bedroom and cleaned off periodically to remove any
accumulated dust and oil. Aware that there were napkins in the bathroom that he could use to do so—
the couple had run out of toilet paper—the defendant,
loaded revolver in hand, walked toward the bathroom
to retrieve a napkin. While approaching the bathroom,
his eyes were focused on the revolver, which he was
trying, unsuccessfully, to render safe by disabling its
discharge mechanism.5 As he started to enter the bathroom, he tripped on the doorjamb and fell forward,
toward the victim, who was seated on the toilet only
a few feet away. Although still in possession of the
revolver as he fell, the defendant could not control it,
and the barrel of the gun inadvertently struck the side of
the victim’s head, and the gun accidentally discharged,
killing the victim.
At trial, the state advanced a markedly different theory with respect to the events leading up to the victim’s
death. Although the state did not claim that the defendant intended to shoot the victim, the prosecutor
asserted in closing argument that the evidence established that the defendant entered the bathroom with the
loaded revolver and intentionally pressed the muzzle
of the revolver forcefully against the victim’s head, just
behind her left ear. According to the prosecutor, the
defendant’s conduct in placing the revolver to the victim’s head likely was the result of ‘‘another one of [the]
5
For a further explication of the defendant’s statement regarding his effort
to render the revolver safe, see footnote 10 of this opinion and accompanying text.
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State v. Anthony V.
alcohol and drug fueled arguments’’ between the defendant and the victim. The prosecutor further argued that
the defendant’s reckless conduct evinced his extreme
indifference to the victim’s life by subjecting her to a
grave risk of death and thereby causing her death when
he unintentionally pulled the trigger and discharged the
revolver.6
At the conclusion of the trial, the jury found the
defendant guilty of manslaughter in the first degree
with a firearm. The trial court rendered judgment in
accordance with the jury verdict and sentenced the
defendant to a term of imprisonment of twenty-five
years, execution suspended after eighteen years, followed by three years of probation. This appeal followed.
Additional facts and procedural history will be set forth
as necessary.
I
The defendant first claims that the state failed to
prove beyond a reasonable doubt that he was guilty of
manslaughter in the first degree with a firearm because
the evidence does not support the state’s theory that
he intentionally placed the loaded revolver against the
victim’s head.7 The defendant contends, instead, that
6
The defendant did not testify at trial. His version of events was presented
to the jury through the statements he gave to the police and by defense
counsel in closing argument.
7
With respect to the state’s theory of the case, in his initial closing argument, the prosecutor told the jury that ‘‘the state’s theory is that the defendant
showed an extreme indifference to the life of [the victim] and created a
grave risk of her death when he pressed a loaded . . . revolver to the side
of her head while aware that, in doing so, a substantial and unjustifiable
risk existed of unintentional discharge.’’ The prosecutor then stated, ‘‘I’ll
say it again,’’ and repeated verbatim the state’s theory of the case. In defense
counsel’s closing argument, he maintained that the evidence did not support
the state’s theory of the case and asserted that the shooting occurred in
the manner described by the defendant in his interview statements to the
police. Then, near the end of the prosecutor’s rebuttal argument, he told
the jury, without objection, that the defendant had committed manslaughter
in the first degree with a firearm ‘‘regardless of which version you believe,
whether he pressed the firearm up against [the victim’s] head forcefully or
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State v. Anthony V.
the evidence demonstrates that the ‘‘cause of the gun
coming up against [the victim’s] head was not a volitional act’’ by the defendant but, rather, ‘‘a tragic, calamitous accident.’’ We are not persuaded.8
We first set forth the well established legal principles
that govern our consideration of the defendant’s challenge to the sufficiency of the evidence. ‘‘In reviewing
he was handling it and tripped.’’ The prosecutor then briefly summarized,
without specific reference to the state’s theory that the defendant had intentionally pressed the revolver against the victim’s head, why the defendant
‘‘was extremely reckless [on the] night’’ the victim was killed. See footnote
17 of this opinion. On appeal, the defendant’s claim of insufficient evidence
is predicated on the state’s theory of the case as stated by the prosecutor
in his initial closing argument. Moreover, despite some language in the
state’s brief arguably suggesting that conduct by the defendant short of
placing the revolver to the victim’s head would suffice to prove the offense
of manslaughter in the first degree with a firearm, we do not read the state’s
brief as relying on the claim that the jury could have found the defendant
guilty of that offense under the defendant’s own version of events. Rather,
the state’s brief repeatedly explains why the evidence supports the state’s
theory that the defendant intentionally placed the fully loaded revolver
against the victim’s head. In response to questions during oral argument
before this court, however, the state did assert that the facts alleged by the
defendant himself were sufficient to constitute the offense of manslaughter
in the first degree with a firearm. Because both parties’ briefs focus on the
state’s theory of the case as articulated repeatedly and unequivocally by the
prosecutor in his initial closing argument, and because the parties seemingly
agree that the jury verdict was based on that theory, our review of the
defendant’s claim of evidentiary insufficiency is also limited to that theory
of the case.
8
Because the defendant acknowledges that the evidence adduced at trial
was sufficient to support a jury finding of the lesser included offense of
criminally negligent homicide in violation of General Statutes § 53a-58 (a),
a misdemeanor; see footnote 12 of this opinion; and because the trial court
instructed the jury on that lesser included offense (as well as the lesser
included offense of manslaughter in the second degree with a firearm in
violation of General Statutes § 53a-56a (a)), the defendant contends that
this court should reverse the judgment of conviction of manslaughter in the
first degree with a firearm on the ground of evidentiary insufficiency and
remand the case to the trial court with direction to render a judgment of
conviction of criminally negligent homicide and for resentencing. See, e.g.,
State v. Desimone, 241 Conn. 439, 460 n.28,
696 A.2d 1235 (1997) (when
trial evidence does not support defendant’s conviction of offense charged,
reviewing court may modify judgment to reflect conviction of lesser included
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State v. Anthony V.
the sufficiency of the evidence to support a criminal
conviction we apply a [two part] test. First, we construe
the evidence in the light most favorable to sustaining
the verdict. Second, we determine whether upon the
facts so construed and the inferences reasonably drawn
therefrom the [jury] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . .
‘‘In particular, before this court may overturn a jury
verdict for insufficient evidence, it must conclude that
no reasonable jury could arrive at the conclusion the
jury did. . . . Although the jury must find every element proven beyond a reasonable doubt in order to
find the defendant guilty of the charged offense . . .
each of the basic and inferred facts underlying those
conclusions need not be proved beyond a reasonable
doubt. . . .
‘‘If it is reasonable and logical for the [jury] to conclude that a basic fact or an inferred fact is true, the
[jury] is permitted to consider the fact proven and may
consider it in combination with other proven facts in
determining whether the cumulative effect of all the
evidence proves the defendant guilty of all the elements
of the crime charged beyond a reasonable doubt.’’ (Citations omitted; internal quotation marks omitted.) State
v. Waters, 214 Conn. App. 294, 301–302,
280 A.3d 601,
cert denied, 345 Conn. 914,
284 A.3d 25 (2022).
‘‘Moreover, it does not diminish the probative force
of the evidence that it consists, in whole or in part, of
evidence that is circumstantial rather than direct. . . .
offense if evidence was sufficient to support conviction of lesser included
offense on which jury properly had been instructed and jury’s verdict necessarily included finding that defendant was guilty of lesser offense). In light
of our conclusion that the evidence was sufficient to support his conviction
of manslaughter in the first degree with a firearm, and our conclusion in
part II of this opinion that he is entitled to a new trial on that charge, we
reject the defendant’s proposed remand order.
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State v. Anthony V.
It is not one fact . . . but the cumulative impact of
a multitude of facts which establishes guilt in a case
involving substantial circumstantial evidence. . . . In
evaluating evidence, the [jury] is not required to accept
as dispositive those inferences that are consistent with
the defendant’s innocence. . . . The [jury] may draw
whatever inferences from the evidence or facts established by the evidence [that] it deems to be reasonable
and logical. . . .
‘‘Additionally, given the nature of this appeal, it is
important to underscore that there is a fine line between
the making of reasonable inferences and engaging in
speculation—the jury is allowed to do the former. . . .
However, [t]he line between permissible inference and
impermissible speculation is not always easy to discern.
When we infer, we derive a conclusion from proven
facts because such considerations as experience, or
history, or science have demonstrated that there is a
likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the
inference is reasonable. But if the correlation between
the facts and the conclusion is slight, or if a different
conclusion is more closely correlated with the facts
than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the
conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter
of judgment. . . .
‘‘[P]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to
exclude every other hypothesis. It is sufficient if the
evidence produces in the mind of the trier a reasonable
belief in the probability of the existence of the material
fact. . . . Thus, in determining whether the evidence
supports a particular inference, we ask whether that
inference is so unreasonable as to be unjustifiable. . . .
In other words, an inference need not be compelled by
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State v. Anthony V.
the evidence; rather, the evidence need only be reasonably susceptible of such an inference.’’ (Citations omitted; internal quotation marks omitted.) State v. Richards, 196 Conn. App. 387, 396–97,
229 A.3d 1157 (2020),
aff’d, 339 Conn. 628,
261 A.3d 1165, cert. denied,
U.S. , 142 S. Ct. 431,
211 L. Ed. 2d 255 (2021).
Finally, ‘‘proof beyond a reasonable doubt does not
mean proof beyond all possible doubt . . . nor does
proof beyond a reasonable doubt require acceptance
of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would
have resulted in an acquittal. . . . On appeal, we do
not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of
innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [jury’s]
verdict of guilty.’’ (Internal quotation marks omitted.)
State v. Kenneth B., 223 Conn. App. 270, 274,
308 A.2d
82, cert. denied,
348 Conn. 952,
308 A.3d 1038 (2024).
Of course, the elements of the offense of which the
defendant was convicted provide the context in which
we apply the foregoing principles. ‘‘A person is guilty
of manslaughter in the first degree with a firearm when
he commits manslaughter in the first degree as provided
in section 53a-55, and in the commission of such offense
he uses . . . a pistol, revolver, shotgun, machine gun,
rifle or other firearm. . . .’’ General Statutes § 53a-55a
(a). General Statutes § 53a-55 (a) provides in relevant
part that: ‘‘A person is guilty of manslaughter in the first
degree when . . . (3) under circumstances evincing an
extreme indifference to human life, he recklessly
engages in conduct which creates a grave risk of death
to another person, and thereby causes the death of
another person.’’ Accordingly, for the defendant to be
found guilty of manslaughter in the first degree with a
firearm, ‘‘the state had to prove beyond a reasonable
doubt the following: (1) that the defendant engaged in
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State v. Anthony V.
conduct that created a grave risk of death; (2) that
in doing so the defendant acted recklessly; (3) under
circumstances evincing an extreme indifference to
human life; and (4) the defendant caused the death of
the victim. . . . Additionally, the state had to prove
that the defendant had the general intent to engage in
conduct that created a grave risk of death to another
person under circumstances evincing extreme indifference to human life.’’ (Internal quotation marks omitted.)
Leon v. Commissioner of Correction, 189 Conn. App.
512, 539,
208 A.3d 296, cert. denied,
332 Conn. 909,
209
A.3d 1232 (2019).
‘‘A person acts ‘recklessly’ with respect to a result
or to a circumstance described by a statute defining an
offense when he is aware of and consciously disregards
a substantial and unjustifiable risk that such result will
occur or that such circumstance exists. The risk must
be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct
that a reasonable person would observe in the situation
. . . .’’ General Statutes § 53a-3 (13). ‘‘[T]he legislature
has provided some guidance as to the level of indifference it intended in § 53a-55 (a) (3) by modifying the level
of indifference with the adjective extreme. Extreme is
defined as existing at the highest or greatest possible
degree, and is synonymous with excessive. . . . The
adjective grave is defined as very serious: dangerous
to life. . . . Our Supreme Court has concluded that the
mental state required for a violation of § 53a-55 (a)
(3) was clear. . . . Recklessness involves a subjective
realization of a risk and a conscious decision to ignore
that risk . . . .’’ (Citation omitted; internal quotation
marks omitted.) State v. Wade, 106 Conn. App. 467, 479,
942 A.2d 1085, cert. granted,
287 Conn. 908,
950 A.2d
1286 (2008) (appeal withdrawn June 12, 2008).
Finally, manslaughter in the first degree with a firearm is a general intent crime requiring only that the
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State v. Anthony V.
actor have the general intent to perform the acts that
constitute the elements of the offense. See Leon v. Commissioner of Correction, supra,189 Conn. App. 539.
‘‘[G]eneral intent is the term used to define the requisite
mens rea for a crime that has no stated mens rea; the
term refers to whether a defendant intended deliberate,
conscious or purposeful action, as opposed to causing
a prohibited result through accident, mistake, carelessness, or absent-mindedness. [When] a particular
crime requires only a showing of general intent, the
prosecution need not establish that the accused
intended the precise harm or precise result which
resulted from his acts.’’9 (Emphasis omitted; internal
quotation marks omitted.) State v. Juan J., 344 Conn.
1, 21,
276 A.3d 935 (2022). With these principles in mind,
we turn to the defendant’s arguments and the state’s
counterarguments made in support of their opposing
positions regarding the sufficiency of the evidence. In
addressing those arguments, we also set forth certain
additional facts that the state and the defendant contend
substantiate their version of events.
We note, preliminarily, that three significant facts are
not in dispute. First, the state and the defendant agree
that the victim’s fatal wound was inflicted by one shot
fired from the defendant’s handgun, a fully operational
.44 caliber Pietta replica of a Civil War era 1851 Colt
Navy revolver. The revolver is more than twelve inches
long and has six chambers for ammunition. Those
chambers are arranged on a cylinder, which, with each
pull of the trigger, rotates and brings a new chamber
in line with the muzzle, thereby readying the revolver
for the next shot. In contrast to modern day revolvers,
the Pietta replica revolver does not use bullets in the
form of metallic self-contained cartridges. Rather, each
9
General intent, which is ‘‘an intent to engage in certain conduct,’’ is to
be distinguished from specific intent, which is ‘‘an intent to bring about a
certain result.’’ State v. Salamon, 287 Conn. 509, 572,
949 A.2d 1092 (2008).
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State v. Anthony V.
chamber is loaded separately with black powder, a lead
ball projectile, and a percussion cap. When the shooter
pulls the trigger, the revolver’s hammer strikes the percussion cap, crushing it and igniting the sparking agent
inside of it. That, in turn, ignites the powder, which
propels the projectile out of the barrel.
Additionally, the shooter must cock the hammer fully
back before pulling the trigger in order to discharge
the revolver; when the hammer is in the half-cocked
position, the revolver cannot be fired, unless, for example, the revolver is dropped or the hammer is otherwise
struck and inadvertently placed in the fully cocked position. Thus, the only reason to have the hammer fully
cocked back is to discharge the revolver. To clean,
unload, and maintain the revolver, the hammer must
be in the half-cocked position, which allows the user
to rotate the cylinder, remove the percussion caps, and
safely handle the revolver. Nevertheless, the best way
to render an otherwise loaded Pietta replica revolver
completely safe is to remove the percussion caps
because the revolver cannot be discharged, even when
the hammer is fully cocked, unless the percussion caps
are in place.10
A second undisputed fact relates to the revolver’s
exceedingly light ‘‘trigger pull,’’ which refers to the
amount of rearward force that must be applied to the
trigger to release the firing mechanism. Dennis Lyons,
a firearms expert with the Rhode Island State Crime
Laboratory, testified that a single action firearm, like
the defendant’s revolver, ordinarily requires three to
six pounds of force on the trigger to release the hammer.
The trigger pull test that Lyons performed on the
10
In his statements to the police, the defendant explained that, as he was
walking toward the bathroom seconds before the victim was killed, he was
trying to remove the percussion caps from the revolver’s cylinder so that
the revolver could not be fired. According to the defendant, however, he
tripped over the doorjamb before he was able to do so.
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State v. Anthony V.
revolver, however, revealed that only 0.98 pounds of
force on the trigger will release the fully cocked hammer. Lyons described the revolver’s trigger pull as
‘‘extremely light’’ and among the lightest he had ever
seen, characterizing it as a ‘‘hair trigger.’’ Sergeant John
Cavanna, a firearms expert and the firearms training
division supervisor of the Hartford Police Department,
also testified about the trigger pull of the defendant’s
revolver, explaining that ‘‘something is different’’ with
the revolver, and that its uniquely light trigger pull might
be due to a manufacturer’s defect or a modification of
the revolver.
A third uncontested fact is the nature of the victim’s
fatal gunshot wound, which establishes that the muzzle
of the revolver was pressed against the victim’s head
when the shot was discharged. James R. Gill, the state’s
chief medical examiner who performed an autopsy on
the victim’s body, testified that the entrance wound
from the bullet, which was located behind the victim’s
left ear, was a blowback laceration. This type of laceration occurs only when the muzzle of a firearm is pressed
against the body and the weapon is fired. As Gill
explained, ‘‘where the muzzle is pressed against the
skin, all of the gunshot wound residue goes into the
wound, all of the gas goes into the wound, and that’s
when you’re going to see that blowback laceration.’’
Gill further explained that, although the muzzle need
not be completely flush with the skin to create a blowback laceration, but could possibly be at a ‘‘slight angle,’’
he also opined that it would be ‘‘very unlikely’’ that
even a small portion of the muzzle was not directly
against the victim’s head when the revolver was discharged.
As previously indicated, the state’s theory of the case,
as expressed by the prosecutor in closing argument,
was that ‘‘this was no accident. This was a result of the
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State v. Anthony V.
defendant’s extremely reckless and unjustifiable conduct on October 17, 2020,’’ at which time he exhibited
‘‘an extreme indifference to the life of [the victim] and
created a grave risk of her death when he pressed a
loaded . . . revolver to the side of her head while
aware that, in doing so, a substantial and unjustifiable
risk existed of unintentional discharge.’’ The defendant
has not argued that intentionally placing a fully loaded
revolver against another person’s head under the circumstances presented here would not suffice to support
a conviction of manslaughter in the first degree with a
firearm if that conduct were proven beyond a reasonable doubt. Rather, the defendant claims that the state’s
evidence fell short of establishing that he engaged in
such conduct. For the following reasons, we agree with
the state that the evidence was sufficient to support its
contention regarding the conduct of the defendant that
resulted in the victim’s death.
Because of the blowback laceration on the victim’s
head caused by the fatal shot, it is undisputed that the
muzzle of the revolver was against her head and behind
her left ear when the gun discharged. To decide the
case, however, the jury was required to ascertain, on
the basis of the evidence, what caused the revolver to
be positioned in that manner. Although the state could
not present direct evidence of what occurred leading
up to the fatal shot, under the circumstances of the
present case, Gill’s unchallenged testimony that the
shot was discharged while the revolver was positioned
directly against the side of the victim’s head is evidence
that the revolver was placed there intentionally. As the
state points out, the defendant asserts in his brief to
this court that the evidence adduced at trial ‘‘tells a
clear story,’’ namely, that the victim’s death ‘‘was the
result of a calamitous moment in which [the defendant]
tripped’’ and, as he was falling, ‘‘the unwieldy revolver,’’
which he ‘‘held in front of him,’’ ‘‘move[d] with him,
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uncontrolled,’’ and then, ‘‘haphazardly came into contact with the victim’s head’’ before the trigger was accidentally ‘‘grazed and the gun fired, killing [the victim].’’
Although the jury certainly was free to credit this
alleged confluence of events, the jury also was entitled
to believe, in light of Gill’s testimony, that it was considerably more likely that the revolver discharged only
after the muzzle was firmly and intentionally pressed
flush against the victim’s head rather than by random
happenstance.
The state also introduced evidence that permitted
the jury to conclude that the defendant and the victim
had a troubled and tumultuous relationship. For example, a neighbor who resided in the apartment adjacent
to the defendant and the victim testified that their relationship was ‘‘volatile,’’ and that she could hear yelling
and banging through the wall separating her apartment
from that of the defendant and the victim. According to
the neighbor, she often heard such yelling and arguing,
describing its frequency as ‘‘multiple times a week . . .
at least four [occasions per week].’’ In addition, on one
morning approximately one week prior to October 17,
2020, the neighbor observed a mark and swelling above
the victim’s eye after having heard the victim and the
defendant arguing the night before. The neighbor also
testified that the victim would text her or tap on the
wall when ‘‘things [with the defendant] got too heated,’’
and the neighbor would then call the victim and ‘‘make
up an excuse’’ why she needed the victim to come to
her apartment. As a victim of domestic violence herself,
the neighbor was very upset about the abusive nature
of the victim’s relationship with the defendant, and she
spoke about it with the victim and members of the
victim’s family, including the victim’s brother and the
victim’s daughter.
Evidence further revealed that, on October 15, 2020,
two days before the victim’s death, the defendant and
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the victim engaged in a text message conversation in
which the victim stated, ‘‘I’m out. Never needed you and
still don’t in my life . . . . You gonna suffer . . . .’’ At
one point during that text message conversation, the
defendant stated, ‘‘I would stay away because someone
going to jail tonight.’’ The victim responded, ‘‘I don’t
ever wanna come back to 108 or 109,’’ a reference to
the defendant’s apartment (108) and the adjacent apartment in which the victim had resided before moving in
with the defendant (109). The defendant told the police
that he and the victim were arguing on the night of
October 17, 2022, although he also stated that ‘‘it was
nothing’’ but a ‘‘disagreement.’’ Nevertheless, the neighbor’s testimony and the text messages exchanged by
the victim and the defendant shortly before the victim
was killed reflect a volatile and deteriorating relationship marked by ongoing, serious and apparently even
violent conflict and discord.
The defendant also acknowledged to the police that
he consumed a twenty-five ounce beer and a shot of
brandy that night, but he further stated that he had
stopped drinking at approximately 6 p.m. Although the
defendant was not certain exactly how much the victim
had to drink that night, he did know that she continued
to drink throughout the evening, and a toxicology report
revealed that she had an extremely high blood alcohol
content of 0.236. In addition, the toxicology report
revealed that the victim had cocaine in her system.
According to the defendant, the victim was a ‘‘recreational’’ cocaine user, which, the defendant further
stated, explained the various drug paraphernalia found
in their bedroom. The defendant also told the police
that it had been ‘‘irresponsible’’ of him to enter the
bathroom with the fully loaded revolver, without first
disabling it by removing the percussion caps, while the
victim was sitting on the toilet, and that doing so was
a ‘‘dumb decision.’’
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With respect to the revolver, the defendant told the
police that he had shot the revolver once before, several
months before the victim was killed, and fired one shot,
just to make sure the gun was operable. He further
stated that the ‘‘antique pistol’’ was ‘‘a very complicated
thing,’’ that it was ‘‘not really the safest thing,’’ and that
it ‘‘should’ve never been loaded. The caps should’ve
never been on it.’’ The defendant stated, as well, that
he would not allow the victim to handle the revolver
because ‘‘it’s an older weapon that’s not as safe as the
modern weapons.’’ In response to police questioning,
the defendant stated that putting the percussion caps
on the revolver made him a ‘‘nervous wreck,’’ and that
he was uncomfortable handling the revolver. He
explained, in addition, that he kept the revolver loaded
only because of the crime and violence in his neighborhood.11
The state’s evidence also established, as explained
previously, that a shot cannot be discharged from the
revolver when the hammer is in the half-cocked position, which is the position used to clean, maintain, and
load the gun. A shot can be discharged from the revolver
only when the hammer is fully cocked. In his statements
to the police, however, the defendant claimed that he
was not aware that the revolver had a half-cocked position even though he had loaded the gun in that position
himself because, according to the undisputed testimony, that is the only position in which it can be loaded.
The defendant also told the police that he had not fully
cocked the revolver when the victim was shot even
though the revolver could not have discharged unless
11
The defendant told the police that it seemed that ‘‘people were getting
shot every other day’’ in his neighborhood, and that, a few months prior to
October 17, 2020, during the summer, he discovered ‘‘a big blood stain in
[his apartment] parking spot’’ where someone had been shot. He further
explained that, after discovering that blood stain so near his apartment, he
began keeping the revolver, fully loaded, in his bedroom and occasionally
took the gun out to wipe it free of dust and oil.
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it was in a fully cocked position. Finally, the defendant
stated that the revolver was not pointed at anything
when it went off, an assertion that is flatly contradicted
by Gill’s testimony that the muzzle of the revolver was
flush against the victim’s head when the shot was fired.
Regarding the defendant’s statement to the police
that he went into the bathroom to retrieve some napkins
to wipe down the revolver, the evidence established
that there also were napkins on the adjacent bed and
on the bureau next to the bathroom doorway, just feet
away from the defendant. As the prosecutor argued to
the jury, it is difficult to understand why the defendant
elected to go into the small, cramped bathroom while
the victim was on the toilet to get napkins when there
also were napkins more or less right in front of him in
the bedroom.
According to the defendant, because of the nature of
the Pietta replica revolver and his relative unfamiliarity
with it, he had to consult the revolver’s instructional
manual to get directions on how to handle and use it.
The manual, which was admitted into evidence as a full
exhibit, contains warnings about the use of the revolver.
For example, in the section of the manual entitled
‘‘Loading,’’ the manual states, ‘‘Never carry the gun with
the hammer resting on a percussion cap! A light accidental blow to the hammer can readily cause the gun to
discharge.’’ Under the heading, ‘‘Warning,’’ the user is
cautioned to load only five of the revolver’s six chambers to avoid an accidental discharge and to never carry
the revolver with the hammer resting on a percussion
cap. Under a similar heading, the manual underscores
the importance of always handling and carrying the
revolver with the hammer resting on the uncapped and
unloaded chamber. The manual further warns the user
to ‘‘[o]nly place a percussion cap on cylinder when you
are ready to fire. Failure to do so can result in an
accidental discharge causing injury, death or property
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damage.’’ The jury reasonably could have found that
the defendant was irresponsible insofar as he apparently knew of these warnings but essentially chose to
disregard them.
We conclude that this evidence and the inferences
that the jury reasonably could have drawn therefrom
were sufficient to support the state’s theory that the
defendant intentionally placed the muzzle of the
revolver to the victim’s head. On the basis of Gill’s
testimony that the shot that killed the victim was discharged while the muzzle of the revolver was flush
against the victim’s head, the jury reasonably could have
found that the likelihood of that occurring randomly
or haphazardly, as the defendant claimed, was slight.
The evidence also permitted the jury to find that there
was substantial conflict between the defendant and the
victim, that they argued frequently and loudly, and that
the volatility of their relationship was exacerbated by
drug and alcohol use. Furthermore, the jury reasonably
could have questioned the soundness of the defendant’s
judgment because, by his own admission, he was entering the small, cramped bathroom while carrying his
fully loaded and operable replica antique revolver without first disabling it by removing the percussion caps—
even though he knew that his revolver was particularly
dangerous and made him uncomfortable—while the victim was on the toilet. In addition, the jury could have
doubted the veracity of the defendant’s statements concerning his handling of the revolver that evening, including his assertion that he did not know how the hammer
became fully cocked and the shot fired. Moreover,
because there were napkins readily within the defendant’s reach, only feet away from him in the bedroom,
the jury could have discredited the defendant’s assertion that his reason for entering the bathroom was to
retrieve a napkin.
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The defendant claims that the jury reasonably could
not have rejected his version of the events as set forth
in his police interviews. Among other things, he argues:
he would not have been distraught and attempting CPR
on the victim if he was so angry or upset with her that
he intentionally placed the revolver to her head; the
evidence did not permit an inference that his relationship with the victim was so fraught and turbulent that
he would have placed her in grave jeopardy the way the
state postulated he did; because the evidence indicated
that he was sober that night, the state’s theory of an
alcohol and drug fueled confrontation with the victim
in the bathroom is unsupportable; and, because he had
only discharged the revolver once, he was unaware that
it had a hair trigger that could be pulled with only the
slightest rearward pressure.
We do not find the defendant’s arguments so compelling as to require the conclusion that the jury rationally
could not have found as it did. With respect to his
efforts to resuscitate the victim, it is entirely plausible
that he never intended to harm the victim physically
and, aghast by what had occurred, wanted to do everything possible to revive her. Whether the relationship
between the victim and the defendant was sufficiently
volatile and troubled to have prompted the defendant
to place the loaded revolver against the victim’s head—
albeit without the intent to shoot her—was a determination for the jury, not this court, to make on the basis
of all of the evidence and the jury’s assessment of the
defendant’s judgment. Although the defendant told the
police that he had stopped drinking much earlier in the
evening and the police indicated that the defendant
was not noticeably impaired or intoxicated when they
arrived at his apartment, his exact condition is
unknown. Moreover, the victim was quite inebriated,
and whatever encounter or disagreement the victim and
the defendant had that evening might well have been
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exacerbated by what had occurred between the two of
them earlier that day, when both were drinking, or by
the heated text discussion they had two days earlier,
or both. Although the defendant indicated that he did
not know how easily the trigger of the revolver could
be pulled and a shot fired, the state maintained, not
unreasonably, that he likely was aware of the gun’s hair
trigger because he had shot the revolver only a few
months earlier.
Finally, the defendant admitted to the police that it
was irresponsible of him to carry his fully loaded
revolver into the very small bathroom while the victim
was seated on the toilet without first disabling the
revolver completely by removing the percussion caps.
Indeed, on appeal, the defendant has acknowledged
that he was criminally negligent in causing the victim’s
death, that is, he ‘‘fail[ed] to perceive a substantial and
unjustifiable risk’’ that his conduct would result in the
victim’s death, a risk that was of ‘‘such nature and
degree that the failure to perceive it constitute[d] a
gross deviation from the standard of care that a reasonable person would observe in the situation . . . .’’ See
General Statutes §§ 53a-58 (a) and 53a-3 (14).12 Of
course, because manslaughter in the first degree with a
firearm is a significantly greater offense than criminally
negligent homicide and requires a significantly greater
quantum of proof, the defendant’s admission that he
committed the lesser included offense of criminally negligent homicide; see footnote 8 of this opinion; is alone
12
General Statutes § 53a-58 (a) provides in relevant part that ‘‘[a] person
is guilty of criminally negligent homicide when, with criminal negligence,
he causes the death of another person . . . .’’
General Statutes § 53a-3 (14) provides that ‘‘[a] person acts with ‘criminal
negligence’ with respect to a result or to a circumstance described by a
statute defining an offense when he fails to perceive a substantial and
unjustifiable risk that such result will occur or that such circumstance exists.
The risk must be of such nature and degree that the failure to perceive it
constitutes a gross deviation from the standard of care that a reasonable
person would observe in the situation . . . .’’
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insufficient to support a finding that he committed the
greater offense of manslaughter in the first degree with
a firearm. In finding the defendant culpable of that
greater offense, however, the jury may have been influenced by the defendant’s concession that, even under
his theory of the case, he exercised exceedingly poor
judgment by engaging in dangerously irresponsible conduct under the circumstances presented.
We conclude, therefore, that the jury was not obligated to accept the defendant’s version of the facts and
to reject the factual scenario advanced by the state.
‘‘Nothing in our criminal jurisprudence mandates that
a jury accept a defendant’s version of events or the
reasonable inferences that flow therefrom.’’ (Internal
quotation marks omitted.) State v. Ortiz, 252 Conn. 533,
572,
747 A.2d 487 (2000). Rather, ‘‘[t]he [jury] is free to
juxtapose conflicting versions of events and to determine which is more credible.’’ (Internal quotation marks
omitted.) State v. Brown, 198 Conn. App. 630, 637,
233
A.3d 1258, cert. denied,
335 Conn. 942,
237 A.3d 730
(2020). Furthermore, ‘‘we are mindful that [w]e do not
sit as a [seventh] juror who may cast a vote against the
verdict based upon our feeling that some doubt of guilt
is shown by the cold printed record. . . . The scope
of our factual inquiry on appeal is limited. This court
cannot substitute its own judgment for that of the jury
if there is sufficient evidence to support the jury’s verdict.’’ (Internal quotation marks omitted.) State v.
Leandry, 161 Conn. App. 379, 384,
127 A.3d 1115, cert.
denied, 320 Conn. 912,
128 A.3d 955 (2015). Because
the evidence, viewed in the light most favorable to sustaining the verdict, supports the jury’s guilty finding, we
reject the defendant’s claim of evidentiary insufficiency.
II
The defendant also contends that the court improperly failed to instruct the jury on an essential element
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of the offense of manslaughter in the first degree with
a firearm, namely, that the defendant acted with general
intent, that is, volitionally, in allegedly placing the muzzle of the revolver firmly against the victim’s head.
Because the defendant did not raise this claim in the
trial court, he seeks to prevail under the plain error
doctrine.13 We agree with the defendant’s plain error
claim and, accordingly, conclude that he is entitled to
a new trial.
Certain well established principles guide our analysis
of the defendant’s plain error claim. ‘‘[T]he plain error
13
The defendant’s unpreserved claim of a constitutionally deficient jury
instruction is deemed to have been implicitly waived, and therefore not
subject to direct appeal under the bypass rule of State v. Golding, 213
Conn. 233, 239–40,
567 A.2d 823 (1989) (holding that unpreserved claims of
constitutional magnitude may be raised for first time on appeal if, inter alia,
record is adequate for review), as modified by In re Yasiel R., 317 Conn.
773, 781,
120 A.3d 1188 (2015), because, as the defendant concedes, the trial
court complied with the requirements of State v. Kitchens, 299 Conn. 447,
10 A.3d 942 (2011), in which our Supreme Court held that, ‘‘when the trial
court provides [presumptively competent] counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review,
solicits comments from counsel regarding changes or modifications and
counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and
to have waived implicitly the constitutional right to challenge the instructions
on direct appeal.’’ Id., 482–83. The defendant nevertheless maintains that,
insofar as the Kitchens waiver rule is ‘‘based on the presumption that counsel
was aware of, and rejected as a matter of trial strategy, every conceivable
challenge to the jury instructions’’; State v. Bellamy, 323 Conn. 400, 417,
147 A.3d 655 (2016); the rule should not apply to the present case because
it would be ‘‘patently absurd’’ to presume that ‘‘defense counsel decided it
would be a good idea to relieve the state of its burden of proof’’ on the
important element of intent. Our Supreme Court, however, has not heretofore recognized such an exception to Kitchens. In contrast, in State v.
McClain, 324 Conn. 802,
155 A.3d 209 (2017), our Supreme Court carved
out an exception to Kitchens for purposes of plain error review, reasoning,
in part, that ‘‘there simply is no reason why [presumptively] competent
counsel would intentionally relinquish the right to review of an error dire
enough to be contemplated by the plain error rule.’’ (Emphasis in original.)
Id., 815. Accordingly, although we conclude that the defendant’s constitutional claim of instructional impropriety was waived pursuant to Kitchens,
we consider the defendant’s plain error claim.
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doctrine, codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors
committed at trial that, although unpreserved . . . are
of such monumental proportion that they threaten to
erode our system of justice and work a serious and
manifest injustice on the aggrieved party. [T]he plain
error doctrine . . . is not . . . a rule of reviewability.
It is a rule of reversibility. That is, it is a doctrine that
this court invokes in order to rectify a trial court ruling
that, although either not properly preserved or never
raised at all in the trial court, nonetheless requires reversal of the trial court’s judgment . . . for reasons of
policy. . . . In addition, the plain error doctrine is
reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings. . . . Plain error is a doctrine
that should be invoked sparingly. . . . Implicit in this
very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under
review. . . .
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernible] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error
claim presented in light of the record.
‘‘Although a complete record and an obvious error
are prerequisites for plain error review, they are not,
of themselves, sufficient for its application. . . . [I]n
addition to examining the patent nature of the error,
the reviewing court must examine that error for the
grievousness of its consequences in order to determine
whether reversal under the plain error doctrine is appropriate. . . . [Thus, an appellant] cannot prevail under
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State v. Anthony V.
[the plain error doctrine] . . . unless he demonstrates
that the claimed error is both so clear and so harmful
that a failure to reverse the judgment would result in
manifest injustice. . . . [Our] review . . . with
respect to plain error is plenary.’’ (Emphasis in original;
internal quotation marks omitted.) State v. Silva, 339
Conn. 598, 605–606 n.6,
262 A.3d 113 (2021).
The following principles govern our consideration
of the defendant’s challenge to the trial court’s jury
instructions, which provides the basis for his claim of
plain error. ‘‘When reviewing the challenged jury
instruction . . . we must adhere to the well settled rule
that a charge to the jury is to be considered in its
entirety, read as a whole, and judged by its total effect
rather than by its individual component parts. . . .
[T]he test of a court’s charge is not whether it is as
accurate upon legal principles as the opinions of a court
of last resort but whether it fairly presents the case to
the jury in such a way that injustice is not done to either
party under the established rules of law. . . . As long
as [the instructions] are correct in law, adapted to the
issues and sufficient for the guidance of the jury . . .
we will not view the instructions as improper. . . .
‘‘It is . . . constitutionally axiomatic that the jury be
instructed on the essential elements of a crime charged.
. . . [Moreover, constitutional principles of due process protect] an accused against conviction except
upon proof beyond a reasonable doubt of every fact
necessary to constitute 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. . . .
"A jury instruction is constitutionally adequate if it
provides the jurors with a clear understanding of the
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State v. Anthony V.
elements of the crime charged, and affords them proper
guidance for their determination of whether those elements were present. . . . An instruction that fails to
satisfy these requirements would violate the defendant’s right to due process of law as guaranteed by the
fourteenth amendment to the United States constitution
and article first, § 8, of the Connecticut constitution.
. . . The test of a charge is whether it is correct in law,
adapted to the issues and sufficient for the guidance
of the jury.’’ (Internal quotation marks omitted.) State
v. Hearl, 182 Conn. App. 237, 259–60,
190 A.3d 42, cert.
denied, 330 Conn. 903,
192 A.3d 425 (2018). Ultimately,
the primary purpose of the jury charge is to assist the
jurors, unfamiliar with the legal principles pertaining
to the case, ‘‘in applying the law correctly to the facts
which they might find to be established.’’ (Internal quotation marks omitted.) Id., 260.
As we have explained, the mens rea element of the
offense of manslaughter in the first degree with a firearm required proof that ‘‘the defendant had the general
intent to engage in conduct that created a grave risk of
death to another person under circumstances evincing
extreme indifference to human life.’’ (Internal quotation
marks omitted.) Leon v. Commissioner of Correction,
supra,189 Conn. App. 539; see also General Statutes
§§ 53a-55 (a) (3) and 53a-55a. Our Supreme Court has
observed that the offense of manslaughter in the first
degree with a firearm, ‘‘like any other crime of affirmative action . . . require[s] something in the way of a
mental element-at least an intention to make the bodily
movement which constitutes the act which the crime
requires. . . . Such an intent, to perform certain acts
proscribed by a statute, we have referred to as the
general intent ordinarily required for crimes of commission rather than omission.’’ (Internal quotation marks
omitted.) State v. Gonzalez, 300 Conn. 490, 502,
15 A.3d
1049 (2011); see also State v. Pierson,
201 Conn. 211,
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State v. Anthony V.
216, 514 A.2d 724 (1986). As also noted previously, the
requirement of general intent is satisfied by proof that
the defendant’s act or movement was deliberate, conscious or purposeful and not merely an accident or
mistake. See State v. Juan J., supra, 344 Conn. 21. In
other words, ‘‘the state needed to prove . . . that the
defendant intended to make the bodily movement [that]
constitutes the act [that] the crime requires . . . .’’
(Internal quotation marks omitted.) Id., 22.
In the present case, therefore, the state was required
to ‘‘prove . . . that the [defendant] acted volitionally
to use . . . [the revolver] in the commission of the
offense’’ by intentionally placing it against the victim’s
head. State v. Gonzalez, supra,300 Conn. 503. Thus,
‘‘[t]hat the [defendant] intend[ed] to perform the physical acts that constitute the crime . . . in the manner
proved by the [state’s] evidence [was] implicitly a part
of the state’s burden of proof and, in that sense, an
element of the crime.’’ (Citation omitted; internal quotation marks omitted.) Id., 502 n.14; see also State v.
Pierson, supra, 201 Conn. 216–17. Because the interview statements that the defendant gave to the police, if
credited by the jury, support the defendant’s contention
that the revolver struck the victim’s head accidentally,
the defendant’s right to a fair trial entitled him to a jury
instruction that the state bore the burden of proving,
contrary to his version of events, that he had intentionally placed the revolver against the victim’s head.14
14
We note that the defendant would not have been entitled to a jury
instruction on general intent if his intent was not implicated by the defense
theory of the case because ‘‘[a] trial court is not . . . required to instruct
a jury about the principle that ‘a criminal act must be volitional’ or that the
defendant must have the ‘general intent to do a criminal act’ unless there
is evidence at trial that suggests that ‘the defendant’s conduct was involuntary. . . .’ State v. Pierson, supra, [201 Conn.] 217–18.’’ State v.
Gonzalez,
supra,300 Conn. 502 n.14. In the present case, however, it is abundantly
clear that such an instruction was required in view of his version of events
and the evidence adduced at trial in support thereof.
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Indeed, as the defendant correctly points out, his intent
with respect to the positioning of the revolver—whether
he intentionally placed it against the victim’s head while
she was sitting on the toilet or it happened to land
there, tragically and by accident, when the defendant
tripped and fell into the bathroom—‘‘was not only in
dispute but was the central dispute of the trial.’’
Defense counsel did not file a written request to
charge, nor did he otherwise seek an instruction on
general intent. Moreover, although the trial court’s proposed jury instructions addressed all the other elements
of the offense, those instructions contained no express
reference to the general intent requirement. Indeed, the
instructions made no mention of intent at all. Defense
counsel expressed his approval of those instructions,
however, and, thereafter, took no exception to the jury
charge as given, which also contained no explicit reference to the intent requirement.
Nevertheless, although the jury was under no obligation to accept the defendant’s assertion that the revolver
accidentally struck the victim’s head and discharged
following his fall into the bathroom, the defendant correctly maintains that the jury reasonably could not have
appreciated the significance of his version of events
without an instruction advising the jury of the general
intent requirement. In the absence of such an instruction, the jury could have found the defendant guilty on
the basis of acts or movements by him that were not
volitional or intentional but, rather, accidental or involuntary. As a constitutional matter, the omission of an
instruction on an element of the offense requires a new
trial unless the state can establish beyond a reasonable
doubt that the omitted element was uncontested and
supported by overwhelming evidence. See, e.g., State
v. Newton, 330 Conn. 344, 371–72,
194 A.3d 272 (2018).
Here, the element of general intent was vigorously contested, and the state’s evidence, although sufficient to
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State v. Anthony V.
prove the state’s theory of the case, was entirely circumstantial and cannot fairly be characterized as overwhelming.
The state argues, however, that the defendant is not
entitled to a new trial under the plain error doctrine
despite the lack of an express instruction on general
intent. According to the state, although the trial court
did not explicitly instruct the jury on general intent, its
charge on the element of recklessness was sufficient
to inform the jury of that intent requirement. In support
of its claim, the state relies on the following portion of
the court’s instruction: ‘‘The third essential element is
that the defendant engaged . . . in such conduct recklessly.15 Under our law, a person acts recklessly with
respect to a result or to a circumstance described by
a statute defining an offense when he . . . is aware
of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such
circumstance exists. The risk must be of such a nature
or degree that disregarding it constituted a gross deviation from the standard of conduct that a reasonable
person would have observed in the situation. You determine the standard of conduct of a reasonable person
in the same situation as the defendant by determining
what a reasonably prudent person would have done or
not done in such a situation and under such circumstances. A gross deviation is a great or substantial deviation, not simply a slight or moderate deviation. There
must be a great or substantial difference between, on
the . . . one hand, the defendant’s conduct in consciously disregarding a substantial and unjustifiable
15
Just prior to its instruction on recklessness, the court explained to the
jury that the first essential element of the crime of manslaughter in the first
degree with a firearm required the state to prove that ‘‘the defendant shot
[the victim] with a firearm’’ and that the second such element required proof
that ‘‘the defendant engaged in conduct which created a grave risk of death
to’’ the victim.
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risk and, on the other hand, what a reasonable person
would have done or not done under the circumstances.
‘‘Here, the risk which the state must prove beyond
a reasonable doubt that the defendant was aware of
but consciously disregarded when he engaged in his
challenged conduct is as follows: A risk that such conduct would cause the death of [the victim], which was
not only substantial and unjustifiable, but grave or
extremely serious. The state must further establish that
disregarding that risk was a gross deviation from the
standard of conduct that a reasonable person would
have observed in the defendant’s situation.’’ (Emphasis
added; footnote added.)
The state maintains that the foregoing instruction on
recklessness ‘‘incorporated an instruction on general
intent because one cannot be aware of and disregard
a substantial and unjustifiable risk if they do not have
the general intent to engage in such conduct in the first
place. . . . This [instructional] language necessarily
required the jury to find that the defendant had the
general intent to engage in the conduct, the extreme
risk of which he had to be aware of and affirmatively
disregard.’’ (Emphasis in original.)
Notwithstanding the trial court’s instructions on recklessness, we disagree with the state that the court’s jury
charge adequately apprised the jury of the separate and
distinct element of general intent. There has never been
any dispute either that the victim’s death was caused
by the loaded revolver that the defendant carried with
him into the bathroom or that the defendant was in
possession of the revolver when it accidentally discharged, killing the victim. The critical issue for the
jury, rather, was whether the defendant intentionally
pressed the muzzle of the revolver against the victim’s
head just before the shot was fired, or whether the
revolver inadvertently struck the defendant’s head and
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accidentally discharged when the defendant tripped
over the doorjamb and fell into the victim. In such
circumstances, the absence of an express reference in
the court’s instructions to the state’s burden of establishing that the victim’s death resulted from the defendant’s volitional conduct left the jury without the guidance necessary to resolve the primary question it was
required to answer. When, as here, there is evidence
to support the defendant’s contention that the conduct
resulting in the victim’s death was accidental, an
instruction on general intent that fully explains the
requirement of volitional or deliberate conduct as distinguished from conduct that is inadvertent or accidental is vital to a fair trial lest the jury find the defendant
guilty on the basis of such unintentional conduct. See
State v. Martin, 189 Conn. 1, 13,
454 A.2d 256 (defendant’s claim that he accidently engaged in conduct that
provided basis for charge of risk of injury to minor,
which was general intent crime, ‘‘clearly presented the
issue of whether his act, which may have caused the
child to be injured, was an intended bodily movement
likely to injure him,’’ and trial court’s failure ‘‘even to
allude to [that] defense as one which the state had to
disprove was a serious deficiency in the charge’’ that
required new trial), cert. denied, 461 U.S. 933,
103 S.
Ct. 2098,
77 L. Ed. 2d 306 (1983).
Indeed, under the facts and circumstances of the
present case, the court’s explanation to the jury that a
person acts recklessly when he is ‘‘aware of and consciously disregards a substantial and unjustifiable risk’’
clearly was not an adequate substitute for an instruction
on general intent because, without such an instruction,
the jury could have found the defendant guilty of manslaughter in the first degree with a firearm based on
the defendant’s own version of events. That is, the jury
could have returned a guilty verdict upon finding that
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the defendant was aware of and consciously disregarded the danger posed to the victim from an accidental discharge of the revolver-a weapon so relatively
unsafe and challenging to handle that it made the defendant nervous-occurring from a trip and fall or other
mishap when the defendant, carrying the loaded
revolver, entered the small, cramped bathroom while
the victim was seated on the toilet.16 Given the state’s
theory of the case, this eventuality would have been
foreclosed by a jury instruction on general intent
explaining that the defendant could not be found guilty
if the revolver came into contact with the victim’s head
haphazardly or inadvertently, as the defendant claimed,
but, rather, only if the defendant intentionally placed
the gun to the victim’s head. The court’s charge on
recklessness afforded the jury no such guidance and
the defendant no such protection.
The real possibility of jury confusion because of the
lack of an instruction on general intent was compounded by the prosecutor’s statement, in his rebuttal
closing argument, that the defendant could be found
guilty whether he intentionally pressed the revolver
against the victim’s head ‘‘or [whether] he was handling
it and tripped,’’ as the defendant himself claimed.17 See
16
In his rebuttal closing argument, the prosecutor summarized and underscored why it was so dangerous for the defendant to enter the bathroom
carrying the loaded revolver. See footnote 17 of this opinion.
17
The entirety of the relevant portion of the prosecutor’s rebuttal closing
argument is as follows: ‘‘The state submits that the evidence supports no
other verdict than manslaughter in the first degree with a firearm, no other
conclusion [than] that he was extremely reckless that night. And that is
true, frankly, regardless of which version you believe, whether he pressed
the firearm up against her head forcefully or he was handling it and tripped.
He was extremely reckless that night. He was evincing an extreme indifference to her life. He knew handling that gun loaded with firing caps on was
very dangerous. He knew if the gun were dropped with those firing caps
on, it could discharge. He knew it was a hair trigger and, yet, he’s still
fiddling with the firing caps, not looking where he’s going, blind as a bat
as he called himself, in forward motion towards the incredibly small space
where [the victim] was seated when she was killed. And what happened as
a result of the confluence of that extreme recklessness was the product of
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footnote 7 of this opinion. Although the state’s theory
of the case had always been that the defendant intentionally pressed the revolver against the victim’s head,
the prosecutor’s assertion for the first time in his rebuttal argument that the accidental positioning of the
revolver against the victim’s head also supported a
guilty finding blurred the important distinction between
the volitional conduct required for a guilty finding and
the unintentional conduct insufficient for such a verdict. The court’s instructions offered the jury no assistance in understanding or addressing this distinction,
and, therefore, those instructions were inadequate to
guide the jury in determining whether the elements
of the offense were proven by the credible evidence
adduced at trial.
‘‘It is well established that a defendant is entitled to
have the jury correctly and adequately instructed on
the pertinent principles of substantive law. . . . Moreover, [i]f justice is to be done . . . it is of paramount
importance that the court’s instructions be clear, accurate, complete and comprehensible, particularly with
respect to the essential elements of the alleged crime.’’
(Internal quotation marks omitted.) State v. Blaine, 334
Conn. 298, 308,
221 A.3d 798 (2019). These fundamental
requirements were not met in the present case because
of the omission of a jury instruction on the element of
general intent. As a consequence, the defendant was
this defendant’s disregard for [the victim’s] life at that moment.
‘‘Ladies and gentlemen, this was no accident. Accidents are unavoidable.
They’re born out of circumstances that you simply cannot foresee. But the
death of [the victim], that was entirely foreseeable. It was entirely avoidable.
It could have been avoided if the defendant exercised reasonable judgment
that night, but that is not what happened. And, sadly, [the victim] is no
longer with us.
‘‘It was the defendant’s extremely reckless behavior that caused her death,
and for that he should be found guilty of manslaughter in the first degree
with a firearm and nothing less.
‘‘Thank you.’’
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deprived of a fair trial and a reliable verdict. To avoid
manifest injustice, a new trial is required.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
