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STATE OF CONNECTICUT v. JOSE LOPEZ, JR.
(AC 36788)
Beach, Prescott and Norcott, Js.
Argued September 24—officially released December 2, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Hauser, J.)
Brendon P. Levesque, assigned counsel, with whom
was Dana M. Hrelic, for the appellant (defendant).
Emily D. Trudeau, deputy assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Pamela J. Esposito, senior assistant
state’s attorney, for the appellee (state).
Opinion
NORCOTT, J. The defendant, Jose Lopez, Jr., appeals
from the judgment of conviction, rendered after a jury
trial, of murder in violation of General Statutes § 53a-
54a (a). On appeal, the defendant claims that the trial
court erred in declining to instruct the jury on the lesser
charge of criminally negligent homicide. We affirm the
judgment of conviction.
The jury reasonably could have found the following
facts. For several months prior to October, 2010, the
defendant and his son, Jose Lopez III, known as Chinito,
were staying at the home of Ainsworth Barnes in Bridge-
port. Ainsworth Barnes’ son, Brandon Barnes (Barnes),
also resided in the house. On the morning of October
1, 2010, Barnes and the defendant were at the house
when Barnes received a cell phone call from Chinito.
Chinito informed Barnes that he had been robbed on
Barnum Avenue in Bridgeport. After speaking with
Chinito, Barnes woke up the defendant and told him
that Chinito had been robbed. Barnes also called his
cousin, Jamar Watson, who was already on his way to
the house, to inform him of the robbery. Barnes and
the defendant then went outside to start looking for
Chinito. Watson arrived at the house shortly thereafter.
Barnes called Chinito to determine his exact where-
abouts, and then Barnes, Watson, and the defendant
went to find him. Watson drove himself and Barnes in a
rental car, while the defendant drove his black Mustang.
They found Chinito on Pixlee Street in Bridgeport, and
he got into the defendant’s car. Watson, Barnes, Chinito,
and the defendant then began driving around the area
looking for the people who had robbed Chinito. Chinito
saw Shane Smith walking down the street and called
Barnes to identify Smith as one of the people who had
robbed him. Watson and the defendant parked their cars
on the side of the road, and Watson, Barnes, Chinito,
and the defendant got out of the cars to pursue Smith
on foot.
Smith ran down the street, with Watson, Barnes,
Chinito, and the defendant in pursuit. The group caught
up to Smith in front of the Old San Juan bar on Barnum
Avenue and assaulted him. At some point during the
assault, Smith was thrown onto a car parked nearby.
The car’s alarm went off and the assault ended. Smith
ran off and Watson, Barnes, Chinito, and the defendant
started walking back to their cars. While they were
walking back, Smith began to taunt Watson. Watson
and Barnes began to run back toward Smith to fight
him again. The defendant told them to stop and that
he ‘‘got [Smith] twice.’’ At that point, Barnes saw the
defendant holding a knife. Watson, Barnes, Chinito, and
the defendant then returned to their cars and drove
back to Ainsworth Barnes’ house. At the house, the
defendant stated for a second time that he had stabbed
Smith twice. Watson testified that the defendant said
that he stabbed Smith ‘‘where he . . . wouldn’t die
. . . .’’ Barnes testified that the defendant said that he
‘‘tried to get [Smith] where he wasn’t gonna kill him.’’
Smith died later that day. Harold W. Carver II, the
state’s chief medical examiner, performed an autopsy
on Smith. Carver found that Smith’s ‘‘heart muscle was
too big for average’’ and that Smith had two stab
wounds, one to his chest and one to the upper part of
his stomach. The stab to Smith’s chest resulted in ‘‘a
wound to the front wall of his heart and a very small
amount of damage to one of the valves immediately
behind that.’’ The stab wound to the chest was ‘‘a very
bad wound’’ and had caused Smith’s death. Carver also
testified that the large size of Smith’s heart had ‘‘[p]roba-
bly not’’ contributed to the seriousness of the injury
but that ‘‘it may have played some component.’’
The defendant was arrested and charged with murder
in violation of § 53a-54a (a), and conspiracy to commit
murder in violation of General Statutes §§ 53a-48 and
53a-54a (a). He pleaded not guilty and elected a trial
by jury. The defendant requested that the jury be
charged on criminally negligent homicide. The trial
court, Hauser, J., declined to give the charge. The jury
found the defendant guilty of murder and not guilty of
conspiracy to commit murder. The court sentenced the
defendant to forty years imprisonment. This appeal
followed.
On appeal, the defendant claims that the trial court
improperly refused to give a lesser included offense
instruction on criminally negligent homicide. He argues
that the evidence regarding his mental state was suffi-
ciently in dispute and could have sustained a conviction
of criminally negligent homicide. We disagree.
We now turn to the applicable standard of review.
State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414
(1980), sets forth the standard for when a defendant is
entitled to a jury instruction on a lesser included
offense. An instruction is warranted if the following
conditions are met: ‘‘(1) an appropriate instruction is
requested by either the state or the defendant; (2) it is
not possible to commit the greater offense, in the man-
ner described in the information or bill of particulars,
without having first committed the lesser; (3) there is
some evidence, introduced by either the state or the
defendant, or by a combination of their proofs, which
justifies conviction of the lesser offense; and (4) the
proof on the element or elements which differentiate
the lesser offense from the offense charged is suffi-
ciently in dispute to permit the jury consistently to find
the defendant innocent of the greater offense but guilty
of the lesser.’’ Id.
The state and the defendant agree that the defendant
requested a jury instruction on criminally negligent
homicide and that criminally negligent homicide is a
lesser included offense of murder. Therefore, in order
to prevail on his claim, the defendant must satisfy the
third and fourth prongs of Whistnant. ‘‘[D]espite being
conceptually distinct parts of the Whistnant formula-
tion, the third and fourth prongs are subject to the
same evidentiary analysis . . . [and, therefore, can be
analyzed] simultaneously.’’ (Internal quotation marks
omitted.) State v. Jones, 289 Conn. 742, 762, 961 A.2d 322
(2008). ‘‘[T]here must be sufficient evidence, introduced
by either the state or the defendant, or by a combination
of their proofs, to justify a finding of guilt of the lesser
offense. . . . Although [we] expressly [reject] the
proposition that a defendant is entitled to instructions
on lesser included offenses based on merely theoretical
or possible scenarios . . . we . . . consider the evi-
dence available at trial in the light most favorable to
the defendant’s request. . . . [T]he jury’s role as fact-
finder is so central to our jurisprudence that, in close
cases, the trial court should generally opt in favor of
giving an instruction on a lesser included offense, if it
is requested. . . . Otherwise the defendant would lose
the right to have the jury pass upon every factual issue
fairly presented by the evidence.’’ Id., 763.
The defendant argues that the testimony of Watson
and Barnes, who testified that the defendant stated that
he tried to stab Smith where Smith would not die, and
that of Carver, who testified to the large size of Smith’s
heart, placed the defendant’s intent in question and
justified a jury charge on criminally negligent homicide.
The defendant contends that, on the basis of the forego-
ing testimony, ‘‘the jury could have concluded that the
defendant did not intend to kill the victim, but instead
failed to perceive the risk that the physical altercation
and use of the knife, combined with the unknown fact
of the victim’s abnormally large heart, a fact of which
the defendant had no knowledge, would result in his
death.’’
The state, on the other hand, argues that the evidence
presented at trial did not warrant a jury instruction on
criminally negligent homicide. The state asserts that ‘‘no
rational jury applying common sense could reasonably
accept the defendant’s claim of negligent homicide
. . . . [T]he only rational conclusion the jury could
have reached was that, at a minimum, the defendant
behaved recklessly.’’ (Citations omitted.) We agree with
the state.
General Statutes § 53a-58 (a) provides in relevant part
that ‘‘[a] person is guilty of criminally negligent homi-
cide when, with criminal negligence, he causes the
death of another person . . . .’’ General Statutes § 53a-
3 (14) defines criminal negligence as the failure ‘‘to
perceive a substantial and unjustifiable risk that such
result will occur or that such circumstance exists. . . .’’
Therefore, ‘‘[t]o be guilty of criminally negligent homi-
cide . . . the defendant must fail to perceive a substan-
tial and unjustifiable risk that death will occur.’’ State
v. Ray, 228 Conn. 147, 155, 635 A.2d 777 (1993).
The defendant argues that the facts of his case are
similar to those in State v. Tomlin, 266 Conn. 608, 634,
835 A.2d 12 (2003) (holding that trial court improperly
declined to instruct jury on lesser included offenses),
and distinguishable from those in State v. Rasmussen,
225 Conn. 55, 73, 621 A.2d 728 (1993) (holding that trial
court properly denied defendant’s request for lesser
included offense instructions). The defendant relies on
our Supreme Court’s decision in Tomlin to support his
argument that he was entitled to a jury instruction on
criminally negligent homicide. In Tomlin, the defendant
was convicted of manslaughter in the first degree with
a firearm in violation of General Statutes §§ 53a-55a (a)
and 53a-55 (a) (3). State v. Tomlin, supra, 610. On
appeal, the defendant claimed that the trial court
improperly declined to instruct the jury on manslaugh-
ter in the second degree and criminally negligent homi-
cide. Id. The Supreme Court concluded that, viewing
the evidence in the light most favorable to the defen-
dant, the jury reasonably could have found that the
‘‘victim . . . approached the defendant in a hostile
manner and the defendant reacted by shooting the gun
three more times in rapid succession toward what he
believed was the ground in front of the defendant. The
defendant intended to scare the victim so that he would
flee the scene and at no point in time did he intend to
shoot the victim.’’ Id., 633. The Supreme Court held that
the evidence regarding the defendant’s mental state was
sufficiently in dispute and, therefore, the trial court had
improperly declined to instruct the jury on manslaugh-
ter in the second degree and criminally negligent homi-
cide. Id., 634.
Similarly, in State v. Ray, supra, 228 Conn. 148–49,
the defendant, after being convicted of manslaughter
in the second degree in violation of General Statutes
§ 53a-56 (a), appealed on the ground that the trial court
had improperly refused his request to instruct the jury
on criminally negligent homicide. The defendant had
fatally stabbed the victim in a dark, narrow hallway
during a physical altercation with the victim. Id., 150–51.
At trial, the defendant ‘‘admitted to stabbing [the victim]
but claimed that he had been frightened and had acted
in self-defense.’’ Id., 151. Our Supreme Court concluded
that the jury reasonably could have found that ‘‘the fatal
wound was caused, not as a result of the defendant
recklessly lunging at [the victim] with the knife, but
rather as a result of the defendant negligently stabbing
[the victim] in the chest while blindly trying to fend
him off.’’ Id., 158. Accordingly, the Supreme Court held
that ‘‘the defendant’s state of mind was sufficiently in
dispute so as to entitle him to a lesser included offense
charge regarding criminally negligent homicide.’’ Id.
On the other hand, in State v. Rasmussen, supra, 225
Conn. 73, our Supreme Court held that the trial court
properly denied the defendant’s request for lesser
included offense instructions on manslaughter in the
first and second degrees. The defendant was convicted
of murder following the death of his wife, whom the
police found lying face up on the floor with a ‘‘wooden
dowel protrud[ing] five or six inches from her chest.’’
Id., 57. On appeal, the defendant argued that he was
entitled to lesser included offense instructions because
the jury could have found from the evidence at trial
that ‘‘he had strangled his wife without the intent to
cause her death and that he stabbed her and staged a
burglary to cover up the strangulation.’’ Id., 69. The
Supreme Court rejected this argument, concluding that
‘‘the cumulative effect of the evidence in the record
compelled the jury, if it found the defendant was the
perpetrator, to find that he had intended to kill his wife.
The facts presented excluded the possibility that the
victim had been unconscious at the time of the stab-
bings and incised wounds. One who uses a deadly
weapon upon a vital part of another will be deemed to
have intended the probable result of that act, and from
such a circumstance a proper inference may be drawn
in some cases that there was an intent to kill. . . . A
pistol, dirk-knife, or gun is a deadly weapon per se.
. . . It requires nothing more than common sense to
conclude that slashes to the neck of a conscious victim
that severed the victim’s jugular vein, trachea, larynx
and esophagus and the impalement of the victim by a
spear are evidence of an intent to kill rather than mere
recklessness or intent to injure seriously.’’ (Citations
omitted; internal quotation marks omitted.) Id., 72.
The Whistnant standard and the foregoing case law
indicate that a jury instruction on criminally negligent
homicide is warranted in cases where there is some
evidence from which the jury could reasonably con-
clude that the defendant acted negligently, such as
when the defendant is so preoccupied by his own emo-
tions or safety that he fails to perceive the risk of death
to the victim. See State v. Whistnant, supra, 179 Conn.
588; see also State v. Edwards, 214 Conn. 57, 69, 570
A.2d 193 (1990) (holding that defendant was entitled
to jury instruction on criminally negligent homicide
because his preoccupation with committing suicide pre-
vented him from perceiving the risk of death to the
victim). We are not persuaded that the facts in the
present case justify a jury instruction on criminally neg-
ligent homicide.
A thorough review of the record reveals that the
evidence does not reasonably support a finding that the
defendant acted negligently. Unlike in Tomlin and Ray,
there was no evidence in the present case that the
defendant was trying to scare off an assailant or acting
in self-defense, or that he stabbed Smith accidentally.
There is nothing in the record to suggest that the defen-
dant was frightened during the altercation with Smith,
or that he was so preoccupied with his own emotions
or safety that he failed to perceive the risk that stabbing
Smith twice in the chest might result in Smith’s death.
Although there was testimony from Barnes that the
defendant was angry when he learned that his son had
been robbed, the defendant had time to locate his son
and drive around the area looking for the perpetrators
before he stabbed Smith. There was no evidence that,
at the time the defendant stabbed Smith, the defendant
was so preoccupied with rage that he failed to perceive
the risk of death. We recognize that we are required to
view the evidence in the light most favorable to the
defendant. State v. Jones, supra, 289 Conn. 763. This
does not mean, however, ‘‘that the evidence must be
unrealistically parsed in contravention of how it was
presented to and reasonably could have been perceived
by the jury.’’ State v. Preston, 248 Conn. 472, 477, 728
A.2d 1087 (1999).
The defendant argues that the testimony of Watson
and Barnes, that the defendant stated that he stabbed
Smith ‘‘where he . . . wouldn’t die,’’ provided some
evidence from which the jury could find that the defen-
dant did not intend to kill Smith but instead failed to
perceive the risk of death. The defendant is correct
that the jury could have inferred from his statement to
Watson and Barnes that he did not intend to kill Smith.
His statement in itself, however, does not show that he
failed to perceive the risk that stabbing Smith twice in
the chest might result in Smith’s death. In fact, it tends to
show the opposite. The defendant’s statement suggests
that he intentionally stabbed Smith and tried to posi-
tion the knife so that it would inflict nonlethal wounds.
The defendant’s attempt to stab Smith ‘‘where he . . .
wouldn’t die’’ indicates that the defendant perceived
the risk that Smith might die as a result of being stabbed
and chose to disregard it. In other words, the defendant
acted at least recklessly. See General Statutes § 53a-3
(13) (‘‘[a] person acts ‘recklessly’ . . . when he is
aware of and consciously disregards a substantial and
unjustifiable risk’’).
The defendant also argues that the jury could have
found that he failed to perceive the risk on the basis
of Carver’s testimony that Smith’s heart was larger than
normal and that the large size of Smith’s heart ‘‘may
have played some component’’ in his death. Essentially,
the defendant argues that he failed to perceive the risk
that stabbing Smith twice in the chest might result in
Smith’s death because he was not aware of the large
size of Smith’s heart and it was possible that the large
size of the heart resulted in a more serious wound than
would have occurred if Smith had had a normal sized
heart. This argument is without merit. It requires noth-
ing more than common sense to conclude that stabbing
someone in the chest, regardless of the size of that
person’s heart, carries with it the risk of death. See
State v. Rasmussen, supra, 225 Conn. 72. As explained
previously in this opinion, this argument also fails
because the record in the present case is devoid of any
evidence that the defendant failed to perceive the risk
of death when he stabbed Smith.
The record does not reasonably support a finding
that the defendant failed to perceive a substantial and
unjustifiable risk of death. The cumulative effect of the
evidence in the record compelled the jury, if it found
that the defendant stabbed the victim, to find that he did
so at least recklessly. We conclude that the evidence,
introduced by either the state or the defendant, or by
a combination of their proofs, was not sufficient to
justify a conviction of criminally negligent homicide
and, therefore, the court did not err in declining to
charge the jury on criminally negligent homicide.
The judgment is affirmed.
In this opinion the other judges concurred.