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STATE v. KING—DISSENT
ROBINSON, J., with whom PALMER and McDON-
ALD, Js., join, dissenting. I respectfully disagree with
the majority’s decision to reverse the judgment of the
Appellate Court, which had overturned the convictions
of the defendant, Robert King, of two counts of inten-
tional and reckless assault in the first degree in violation
of General Statutes § 53a-59 (a) (1) and (3),1 on the
ground that they were based on a legally inconsistent
verdict that did not reflect the theory of the case that
the prosecutor had presented to the jury at trial. State
v. King, 149 Conn. App. 361, 373–76, 87 A.3d 1193 (2014).
Our recent decision in State v. Nash, 316 Conn. 651,
665–69, 114 A.3d 128 (2015), constrains me to agree
with the majority’s ultimate conclusion in part I of its
opinion that the defendant’s convictions for both inten-
tional and reckless assault are—at least conceptually—
not legally inconsistent under the state’s theory of the
case that was presented at trial,2 namely, that the defen-
dant stabbed the victim, Kristen Severino, four times
in a single episode when she interfered in a fight
between the defendant and her friend, Kyle Neri, over
a $10 debt.3 I nevertheless disagree with part II of the
majority’s opinion, which concludes that the convic-
tions for both intentional and reckless assault did not
violate the defendant’s due process right to notice under
the theory of the case principles articulated in Dunn
v. United States, 442 U.S. 100, 106, 99 S. Ct. 2190, 60
L. Ed. 2d 743 (1979), and State v. Robert H., 273 Conn. 56,
82–83, 866 A.2d 1255 (2005). I agree with the defendant’s
claim that the record, and in particular the prosecutor’s
closing and rebuttal arguments, demonstrates that the
state presented its case to the jury in a manner that
hedged its bets with respect to the defendant’s mental
state, and did not contemplate obtaining convictions for
both intentional and reckless assault. Like the Appellate
Court, I conclude that the convictions of both inten-
tional and reckless assault ran afoul of due process
principles holding that ‘‘an appellate court cannot affirm
a conviction on the basis of an argument newly fash-
ioned after conviction and not presented at trial.’’ State
v. King, supra, 373. Because I would affirm the judg-
ment of the Appellate Court, I respectfully dissent.
I agree with the background facts and procedural
history stated by the majority and I need not repeat
them in full here. I also agree with the majority’s general
recitation of the applicable constitutional principles
governing the due process issue in this appeal, namely,
whether the defendant received constitutionally ade-
quate notice under Dunn v. United States, supra, 442
U.S. 106, that the state sought to convict him of both
reckless and intentional assault. In principles first artic-
ulated in the context of sufficiency of the evidence
claims,4 we have emphasized the ‘‘important doctrine’’
precluding the state from ‘‘chang[ing] the theory of the
case on appeal.’’ State v. Robert H., supra, 273 Conn.
82. ‘‘The ‘theory of the case’ doctrine is rooted in princi-
ples of due process of law. . . . In Dunn, the United
States Supreme Court explained: ‘To uphold a convic-
tion on a charge that was neither alleged in an indict-
ment nor presented to a jury at trial offends the most
basic notions of due process. Few constitutional princi-
ples are more firmly established than a defendant’s right
to be heard on the specific charges of which he is
accused.’ . . . The court further stated that ‘appellate
courts are not free to revise the basis on which a defen-
dant is convicted simply because the same result would
likely obtain on retrial.’ . . . Subsequently, in Chiare-
lla v. United States, 445 U.S. 222, 237 n.21, 100 S. Ct.
1108, 63 L. Ed. 2d 348 (1980), the United States Supreme
Court observed that an isolated reference at trial to the
theory of the case advanced on appeal is constitution-
ally insufficient to sustain a conviction on appeal.
‘‘The [United States] Court of Appeals for the First
Circuit applied the Dunn principles in Cola v. Reardon,
787 F.2d 681 (1st Cir.), cert. denied, 479 U.S. 930, 107
S. Ct. 398, 93 L. Ed. 2d 351 (1986), a federal habeas
action . . . . In Cola, there was evidence in the record
that would have been sufficient to sustain the petition-
er’s conviction, but the Court of Appeals held that the
state appellate court should not have considered that
evidence in support of the conviction because it was
not part of the state’s theory of the case at trial. . . .
In reaching that result, the Court of Appeals interpreted
Dunn and its progeny as follows: ‘[I]n order for any
appellate theory to withstand scrutiny under Dunn, it
must be shown to be not merely before the jury due to
an incidental reference, but as part of a coherent theory
of guilt that, upon [review of] the principal stages of
trial, can be characterized as having been presented
in a focused or otherwise cognizable sense.’ . . . We
conclude that this statement is an accurate synthesis
of Dunn and Chiarella. We therefore adopt it as the
standard by which to gauge whether evidence intro-
duced at trial, but not relied on by the state in its legal
argument, is properly cognizable by an appellate court
when evaluating the sufficiency of the evidence.’’ (Cita-
tions omitted; emphasis added.) State v. Robert H.,
supra, 273 Conn. 82–83. In evaluating whether a coher-
ent theory of guilt is properly before the jury during
the principal stages of the trial, we conduct a wide-
ranging review of the charging instrument, the jury
instructions, witness examinations, and the prosecu-
tor’s factual and legal arguments, such as summations
and responses to dispositive motions. See, e.g., Cola v.
Reardon, supra, 693–94; State v. Carter, 317 Conn. 845,
854–55, 120 A.3d 1229 (2015); State v. Fourtin, 307
Conn. 186, 208–209, 52 A.3d 674 (2012); see also foot-
note 9 of this dissenting opinion.
I respectfully disagree with the majority’s conclusion
that the state tried this case in a way that apprised the
defendant that the state intended to obtain convictions
for both reckless and intentional assault. See State v.
Nash, supra, 316 Conn. 666–67 (‘‘[i]n light of the state’s
theory of the case, there was nothing to preclude a
finding that the defendant possessed both of these men-
tal states with respect to the same victim at the same
time by virtue of the same act or acts’’). I begin by
acknowledging that, although the substitute informa-
tion and jury instructions do not specifically describe
reckless and intentional assault in the first degree as
charges in the alternative, they similarly do not specifi-
cally state that the jury might be asked to return a guilty
verdict on both counts.5 The remainder of the record
demonstrates, however, that the state presented its the-
ory of the case to the jury in the alternative with respect
to the applicable mental states, which bars it from
arguing otherwise to save the convictions on appeal.6
In particular, after discussing the events leading up to
the defendant’s act of stabbing the victim, the prosecu-
tor argued in her summation that: ‘‘I have two charges.
. . . The first is assault in the first degree with a danger-
ous instrument. . . .
‘‘In both charges, the state has to prove that it’s [the
defendant] that was involved; the second element, the
intent to cause serious physical injury. . . .
‘‘Intent to cause serious physical injury: the things
that—in the testimony that you heard, are the use of a
knife. Now, no one says that [the defendant] gets a
pillow, a spatula, a butter knife; he gets a steak knife,
something that you commonly use to cut something
more difficult than say, butter or peanut butter, or some-
thing like that. They all talk about the thrusting motion,
all . . . said a thrusting motion, at least three times,
in the direction of [the victim].
‘‘You heard that [the defendant] came in and says,
my name is—I’m Black Rob. They call me Black Rob
for a reason, because I kill people. Why does that mat-
ter? That’s what is—he’s trying to scare everybody. He’s
ranting at [Neri] over this money. He comes in and is
angry. And if you look at [the defendant’s] statement
. . . you will read where he says, ‘I was pissed. After
[Neri] was pointing the gun at me, I was real pissed.’
He’s angry. [The victim] says, ‘It felt like I was being
punched in the stomach.’ Those are things that you can
use to cause—use to factor in intent to cause serious
physical injury.’’
After arguing that the evidence satisfied the ‘‘serious
physical injury’’ and ‘‘dangerous instrument’’ elements
with respect to the intentional assault charge, the prose-
cutor stated: ‘‘Now there’s the second charge, assault
one, reckless indifference: a conduct creating a risk of
death, recklessness, extreme indifference to human life
and causes serious physical injury.
‘‘You may be wondering why there are two charges.
You have a variety of evidence to draw from and I
don’t know what you’ll find credible. If you find [the
defendant’s] statement credible, he’s saying he’s wav-
ing the knife around, he’s angry with [Neri], and [the
victim] jumps in the middle, if you believe [the defen-
dant’s] statement you would look more to the assault
one, reckless indifference.’’7 (Emphasis added.)
The prosecutor did not discuss the concept of reck-
less indifference in any detail, and instead went on to
argue about the credibility of the testifying witnesses
and the defendant’s statement to the police. The prose-
cutor then concluded her closing argument by stating
that: ‘‘I believe after the six of you deliberate, hear the
judge’s instructions, and apply the facts of the case as
you’ve heard them, you will find [the defendant] guilty
beyond a reasonable doubt of assault in the first degree,
dangerous instrument.’’
In her rebuttal argument, the prosecutor again did
not argue the concept of recklessness in any detail, but
instead responded to the defendant’s proffered theory
of self-defense by arguing that the version of events set
forth in the defendant’s statement gave rise to the duty
to retreat, thus defeating his justification of self-
defense.8 The prosecutor also argued that there was
no evidence of a gun, as claimed in the defendant’s
statement, and that the defendant’s self-defense justifi-
cation was unbelievable, asking: ‘‘Does [it] make any
sense . . . to protect yourself from a gun with a knife?’’
The prosecutor continued: ‘‘Yes, [the victim] said it
was an accident. I got in the middle of things. She got
in the middle of [Neri] and [the defendant]. She tried
to diffuse the situation. ‘No one needs to die tonight,’
and she got stabbed. She put herself in the middle of
that situation, not—not literally in the middle of the
knife-swinging, but she says I put myself in the middle
of something.’’
Ultimately, the prosecutor concluded her rebuttal
argument by stating that: ‘‘I believe we have proven to
you beyond a reasonable doubt assault first with a
dangerous instrument.’’ (Emphasis added.)
I conclude that there is nothing in the prosecutor’s
summation that remotely hints that the state presented
to the jury a ‘‘coherent theory of guilt . . . in a focused
or otherwise cognizable sense’’; (internal quotation
marks omitted) State v. Robert H., supra, 273 Conn. 83;
that the defendant was guilty of both intentional and
reckless assault. Beyond the prosecutor’s explanation
before the jury of why there were two charges in this
case, which is a statement that plainly contemplates a
case charged in the alternative depending on the jury’s
finding as to the applicable mental state, her statement
with respect to the state’s desired verdict indicates just
such a unitary view of the case. The prosecutor did not
ask for a conviction on ‘‘both’’ or ‘‘all counts,’’ and her
description of the verdict desired was in the singular
insofar as she concluded both her closing and rebuttal
arguments by asking the jury to convict the defendant
of ‘‘assault in the first degree, dangerous instrument’’
and ‘‘assault first with a dangerous instrument’’ respec-
tively. Moreover, the prosecutor paid minimal attention
to the recklessness charge, and did not spend any time
describing the elements of the offense of reckless
assault in an attempt to relate them to the evidence in
the record; it appeared to be a mere afterthought. Thus,
I believe that the majority stretches the word ‘‘ambigu-
ous’’ beyond all comprehension when it uses it to
describe the prosecutor’s closing argument, and calls
it ‘‘difficult . . . to draw any definite conclusions from
the closing argument regarding the state’s theory of
the case.’’
The majority acknowledges that a ‘‘[s]ummation . . .
can often provide a reviewing court with needed clarity
in those cases where the state’s theory at trial is not
clear upon review of the other factors.’’ The majority’s
actual willingness to relieve the state from the theory
put forth in its closing arguments is, however, at drastic
odds with nearly one decade’s worth of case law since
State v. Robert H., supra, 273 Conn. 83, which applies
the due process principles of Dunn v. United States,
supra, 442 U.S. 106–107.9 For example, in State v. Four-
tin, supra, 307 Conn. 188, we considered whether there
was sufficient evidence of ‘‘physical helplessness’’ to
sustain a defendant’s conviction for attempt to commit
sexual assault in the second degree in violation of Gen-
eral Statutes § 53a-71 (a) (3). In particular, we deter-
mined ‘‘whether, at the time of the alleged sexual
assault, the victim was physically able to convey a lack
of consent or unwillingness to an act.’’ Id., 207. We held
that the theory of the case doctrine barred the state
from making an appellate argument that the severely
disabled victim’s acts of biting, scratching, screeching,
kicking, or groaning were not communicative, and were
‘‘ ‘merely emblematic of her multiple disabilities,’ ’’ rea-
soning as follows: ‘‘At no time during the trial, includ-
ing cross-examination, closing argument or rebuttal,
did the state challenge or dispute testimony establishing
that the victim communicated displeasure through bit-
ing, kicking, scratching, screeching or groaning. Indeed,
the state itself elicited much of this testimony, albeit
in an attempt to establish for the jury that the victim
was credible and perfectly capable of communicating
her likes and dislikes. Nor did the state contend or
otherwise suggest that these behaviors were simply
manifestations of the victim’s disabilities rather than
volitional, communicative acts intended to express dis-
pleasure. Likewise, the state did not proceed on the
theory that the victim’s behaviors merely reflected gen-
eralized anger or frustration.
‘‘To the contrary, the prosecutor expressly told the
jury during closing argument that the victim,
‘according to all accounts, was very vocal, very active,
and, if in fact she felt that . . . [people were not under-
standing] what she was saying, I believe [that] every-
body [who has] testified here [has indicated that] she
would throw up her arms and say ‘‘stop.’’ ’ During
closing argument, the prosecutor also noted that the
victim was ‘very limited in terms of . . . what type of
information she can pass on to you,’ and that she had
‘some difficulty expressing herself . . . .’ At no time,
however, did the state even raise the notion that the
victim was unable to communicate an unwillingness to
an act.’’ (Footnote omitted; emphasis altered.) Id.,
208–209.
Similarly, in State v. Carter, supra, 317 Conn. 855,
we recently observed that ‘‘neither the substitute infor-
mation nor the court’s instructions to the jury identified
the target of the attempt to commit assault charge’’
arising from his act of pointing a gun at a police officer.
We relied, however, on the state’s closing argument as
‘‘conclusively demonstrat[ing]’’ its theory of the case,
namely, that the police officer was the person ‘‘at whom
the defendant’s intent was directed.’’ Id. We observed
that the Appellate Court’s view that the case was a
theory of mistaken identity or transferred intent arising
from the defendant’s previously stated intention to
shoot a ‘‘ ‘white dude’ ’’ in a bar was ‘‘a narrative in
direct conflict with the one advanced in the state’s
closing argument.’’ Id., 855–56; see also id., 856 (not
considering whether Appellate Court’s apparent theory
of case doctrine violation required reversal of convic-
tion because evidence was ‘‘sufficient to demonstrate
the defendant’s intent under the theory that the state
argued to the jury’’); State v. Webster, 308 Conn. 43,
57–59, 60 A.3d 259 (2013) (reviewing closing argument
to determine whether state improperly raised theory of
course of conduct leading to narcotics sale, rather than
actual physical transfer, to sustain conviction of sale
of narcotics). The majority’s restrictive application of
the theory of the case doctrine is, therefore, inconsis-
tent with this court’s actual practice in the decade since
it decided State v. Robert H., supra, 273 Conn. 83.10
Guided by these recent Connecticut cases applying
the theory of the case doctrine in connection with the
state’s closing arguments, I conclude that the state pre-
sented the charges of reckless and intentional assault
to the jury as alternatives, rather than in an effort to
obtain multiple convictions arising from the same act.
As the defendant aptly observes, the state adopted a
trial strategy in which it primarily argued that the defen-
dant had ‘‘intentionally stabbed the victim four times,’’
but ‘‘hedged its bet’’ by positing that, ‘‘even on [the
defendant’s] version of the stabbing (which the state
hotly disputed), he recklessly assaulted the victim.’’
Accordingly, I agree with the Appellate Court’s conclu-
sion that the theory of the case doctrine precludes the
state from advancing arguments on appeal that would
save the defendant’s convictions from reversal.11 See
State v. King, supra, 149 Conn. App. 374–75.
I would, therefore, affirm the judgment of the Appel-
late Court. Accordingly, I respectfully dissent.
1
General Statutes § 53a-59 (a) provides in relevant part: ‘‘A person is
guilty of assault in the first degree when: (1) With intent to cause serious
physical injury to another person, he causes such injury to such person or
to a third person by means of a deadly weapon or a dangerous instrument
. . . or (3) under circumstances evincing an extreme indifference to human
life he recklessly engages in conduct which creates a risk of death to another
person, and thereby causes serious physical injury to another person . . . .’’
2
I emphatically disagree with the majority’s legal inconsistency analysis
to the extent that it relies on a factual predicate, embraced by the trial court
in ruling on the defendant’s postverdict motions, that the victim’s four stab
wounds resulted from two separate acts by the defendant, the first act
inflicting one wound recklessly, followed by an intentional act that inflicted
three more wounds. In my view, consideration of this multiple act factual
predicate is purely academic in light of the state’s actual theory of the case.
Specifically, I agree with the Appellate Court’s conclusion, not challenged
by the majority, ‘‘that the evidence was not presented at trial in a manner
suggestive of more than one assault. In order to affirm the defendant’s
conviction, we would have to find that the prosecutor presented the stabbing
as two offenses; one committed intentionally and another committed reck-
lessly. Nothing in the record supports such a conclusion.’’ State v. King,
supra, 149 Conn. App. 374; see also id. (‘‘[A]ll witnesses testified that the
assault occurred quickly, within a short span of time and, essentially, as
one continuous act. There was no testimony elicited at trial that there was
any temporal break between knife thrusts or distinguishing one thrust from
another in any manner.’’). Although I agree with the majority that the legal
inconsistency and theory of the case issues in this appeal are doctrinally
separate inquiries, I nevertheless agree with the defendant that, as a practical
matter, the legal consistency of the verdict must be considered in light of
the state’s theory of the case at trial. In my view, the Appellate Court’s
analysis reflects that reality, rather than use a kaleidoscopic lens of post
hoc rationalization that runs far afoul of the due process theory of the case
principles set forth in, for example, Dunn v. United States, 442 U.S. 100,
106–107, 99 S. Ct. 2190, 60 L. Ed. 2d 743 (1979), and State v. Robert H., 273
Conn. 56, 82–83, 866 A.2d 1255 (2005). See State v. King, supra, 372–74.
3
I note that the Appellate Court decided this case without benefit of our
recent decision in State v. Nash, supra, 316 Conn. 668, which rejected a
defendant’s argument ‘‘that two convictions are mutually exclusive if they
require the jury to find that a defendant simultaneously acted intentionally
and recklessly and, in doing so, caused the same result to the victim.’’ We
concluded instead that ‘‘[t]he relevant inquiry in determining whether two
convictions are mutually exclusive is whether the opposing mental states
relate to the same result, not whether both convictions relate to the same
injury.’’ Id. In Nash, we held that the evidence and the state’s theory in a
case wherein the defendant retaliated against a person for spreading rumors
about him by firing several shots into the second story of that person’s
home, striking that person’s sister, supported convictions of both intentional
and reckless assault in violation of § 53a-59 (a) (1) and (3). Id., 668–69. We
concluded that ‘‘the defendant’s convictions for intentional and reckless
assault in the first degree are not legally inconsistent because the two mental
states required to commit the offenses relate to different results. More
specifically, in order to find the defendant guilty of those offenses, the jury
was required to find that the defendant intended to injure another person
and that, in doing so, he recklessly created a risk of that person’s death. In
light of the state’s theory of the case, there was nothing to preclude a finding
that the defendant possessed both of these mental states with respect to
the same victim at the same time by virtue of the same act or acts. In other
words, the jury could have found that the defendant intended only to injure
another person when he shot into [the sister’s] bedroom but that, in doing
so, he recklessly created a risk of that person’s death in light of the circum-
stances surrounding his firing of the gun into the dwelling.’’ (Footnotes
omitted.) Id., 666–67.
4
These due process principles keep us from evaluating the sufficiency of
the evidence in a ‘‘vacuum’’ when applying the ‘‘well established principles’’
that ‘‘when evaluating the evidence in support of a conviction, we generally
do not confine our review to only that evidence relied on or referred to by
counsel during the trial. Rather, we construe all relevant evidence in the
record, as well as the reasonable inferences drawn therefrom, in a light
most favorable to sustaining the verdict. . . . Furthermore, we defer to the
[fact finder’s] assessment of the credibility of the witnesses based on its
first hand observation of their conduct, demeanor and attitude. . . . We
also assume that the fact finder is free to consider all of the evidence
adduced at trial in evaluating the defendant’s culpability, and presumably
does so, regardless of whether the evidence is relied on by the attorneys.’’
(Citations omitted; internal quotation marks omitted.) State v. Robert H.,
supra, 273 Conn. 81–82.
5
Beyond the simply stated substitute information, the trial court instructed
the jury in relevant part that the defendant ‘‘is charged in two counts in the
information. That is legal language for saying that he’s charged with two
crimes. In count one of the information, the defendant is charged with the
crime of assault in the first degree in violation of [§ 53a-59 (a) (1)]. If you
unanimously find that the state has proven beyond a reasonable doubt each
of the essential elements of this crime and disproven beyond a reasonable
doubt the justification of self-defense, you shall find the defendant guilty
of the crime charged in count one of the information. If you unanimously
conclude that the state has failed to prove beyond a reasonable doubt any
of the elements of this offense or failed to disprove self-defense, then you
shall find the defendant not guilty of the crime charged in count one.
‘‘In count two of the information, the defendant is charged with the
crime of assault in the first degree in violation of [§ 53a-59 (a) (3)]. If you
unanimously find that the state has proven beyond a reasonable doubt each
of the essential elements of this crime and disproven beyond a reasonable
doubt the justification of self-defense, you shall find the defendant guilty
of the crime charged in count two of the information. If you unanimously
conclude that the state has failed to prove beyond a reasonable doubt any
of the elements of this offense or failed to disprove self-defense, then you
shall find the defendant not guilty of the crime charged in count two.
‘‘When you return to the courtroom, you will be asked whether the accused
is guilty or not guilty of each of the crimes charged in the information and
whether your verdict is unanimous as to each charge.’’ (Emphasis added.)
After providing this overview of the charges, the trial court then instructed
the jury as to the specific elements of intentional and reckless assault in
the first degree, without using any transitional language specifically
instructing the jury that it could find the defendant guilty of either or
both charges.
6
I agree with the majority that the state intended to ‘‘try both charges in
the substitute information,’’ and that the information fulfilled its purpose
of informing the defendant that he was charged with both intentional and
reckless assault. I disagree, however, with the majority’s criticism that I,
reach an ‘‘unsupported conclusion’’ that improperly ‘‘discount[s]’’ the signifi-
cance of the information and jury instructions on the ground that they
‘‘follow a similar format in every case,’’ in a manner that ‘‘dramatically and
unnecessarily narrow[s] the ken of our due process inquiry in this context.’’
See footnote 8 of the majority opinion. Given the various interpretations
that could be ascribed to the evidence adduced in this trial that supported
either of the offenses charged, I view the prosecutor’s summation as pre-
senting her view of what the state ultimately hoped to accomplish at the
trial, once the evidence was actually put before the jury.
7
With respect to the defendant’s statement, admitted into evidence
through the testimony of a police detective, the prosecutor argued that the
defendant had said: ‘‘[Y]es, I stabbed [the victim]. He talks about a gun.
He’s the only person that talks about a gun. And there will be a self-defense
charge given, but the first thing you have to believe is did [Neri] have a
gun? No one else says that but [the defendant] and he has an interest in
the outcome of the case. . . . It’s an uncorroborated explanation by [the
defendant] after he’s had time to think.’’
8
The defendant advanced a theory of self-defense, positing that he picked
up a knife to use in self-defense after Neri had threatened him with a gun
during the dispute over the $10. The defendant argued that the evidence
did not support the prosecution’s argument that he ‘‘came [into the apart-
ment] and automatically [stabbed the victim multiple times], because [she]
didn’t sit down quick enough,’’ asking: ‘‘Does that make sense? Or does it
make sense what [the defendant] said to the police the next day or that
same day?’’ The defendant argued that the victim got ‘‘in the middle of it’’
and was stabbed when the defendant used a knife to defend himself from
the gun wielding Neri. The defendant emphasized that the more sensible
version of the events was that this was not ‘‘an unprovoked stabbing’’ over
$10, but that the fight, ‘‘where the apartment [was destroyed] and the dresser
[was pushed] over and [the victim intervenes and] gets stabbed in the
process,’’ was ‘‘part of a larger . . . issue . . . .’’
Relying on these facts, the defendant argued: ‘‘I want you to use your
common sense when you think about this case, what the evidence was.
Does it make sense that this was an unprovoked stabbing or does it ring
true to what my client is telling you in his statement? Does that make more
sense, that this was a brawl, a fight between [Neri] and my client, after
[Neri] threatened him with a gun, and . . . that this was essentially an
accident? She got in the middle. [The victim] got in the middle of [Neri]
and [the defendant] and that’s how she got stabbed. If you do that, I am
confident that you will return a verdict of not guilty.’’
9
I acknowledge the state’s argument that cases such as State v. Fourtin,
supra, 314 Conn. 209–10, which consider closing arguments to divine the
theory of the case, are an improper extension of the theory of the case
doctrine from Cola v. Reardon, supra, 787 F.2d 693–94. The state argues
that the notice purpose of the doctrine requires the state to do no more
than be consistent with the theories posited before the defendant puts on
his case, such as through the substitute information, legal arguments in
response to motions for judgment of acquittal, and confirming jury instruc-
tions. I disagree. First, the federal decisions that this court relied upon in
State v. Robert H., supra, 273 Conn. 82–83, reviewed the summations of the
prosecutor and defense counsel, along with the charging instrument and
jury instructions, to determine the prosecution’s theory of the case. See
Dunn v. United States, supra, 442 U.S. 106–107; Cola v. Reardon, supra,
693. Second, particularly in cases like this one, wherein the substitute infor-
mation and instructions are fairly open-ended, adoption of the state’s posi-
tion in this appeal—which seemingly is endorsed by the majority’s relegation
of closing arguments only to a clarifying role—would leave prosecutors free
to argue virtually anything in order to obtain a conviction and then save it
on appeal, however factually or legally flawed the trial prosecutor’s legal
theory might be. Most significantly, it also would deprive the defendant of
the crucial opportunity to identify and counter significant aspects of the
state’s case before the jury renders its verdict.
10
Numerous recent decisions from the Appellate Court hold similarly.
See, e.g., State v. Davis, 163 Conn. App. 458, 465–69, A.3d (2016)
(noting lack of specificity in information and relying on closing argument
to conclude that state’s theory of murder case was accessorial liability or
liability under Pinkerton v. United States, 328 U.S. 640, 647–48, 66 S. Ct.
1180, 90 L. Ed. 1489 [1946], rather than liability as principal); State v. James
E., 154 Conn. App. 795, 834–35, 112 A.3d 791 (2015) (rejecting claim that
state should be precluded from defending double jeopardy claim on appeal
arising from two convictions of assault of elderly person by arguing that
‘‘there were two separate and distinct crimes’’ because, inter alia, ‘‘the
prosecutor did not present the two . . . charges as alternatives during clos-
ing argument’’).
11
The majority posits that the prosecutor’s statement was ‘‘isolated’’ and
‘‘ambiguous,’’ and that ‘‘[w]e have never held that a prosecutor’s single,
unclear statement during closing argument can deprive a defendant of his
due process right to notice. For us to do so would grant a windfall benefit
to the defendant completely incommensurate with the harm—if any—suf-
fered due to a prosecutor’s lack of clarity during closing argument. This is
particularly apparent in the present case, where the prosecutor’s statement
was a comment on the law that the jury was to apply, and the trial court
specifically instructed the jury that it was to rely on the statements of law
pronounced by the trial court and not the attorneys.’’ (Emphasis omitted.)
I disagree with the majority’s characterization of the state’s argument as
‘‘isolated,’’ ‘‘ambiguous,’’ and a pure statement of the law. The prosecutor’s
closing arguments in this relatively simple case were short, with the initial
summation occupying only seven pages of transcript and the rebuttal barely
two pages. Thus, the prosecutor’s sole, but clear, explanation of why the
state pursued two charges against the defendant is not ‘‘isolated’’ given the
relative brevity of this argument. Further, that portion of the prosecutor’s
argument was not a purportedly objective statement of the black letter law,
which is, of course, the province of the trial court, but rather, an articulation
of the state’s strategy for obtaining a conviction even if the jury were to
credit the defendant’s statement or portions thereof.
Finally, I disagree that the defendant would obtain any kind of ‘‘windfall’’ as
a result of my conclusion. Insofar as the trial court sentenced the defendant
concurrently on the two convictions, all the state had to do to avoid reversal
on appeal was ask the trial court to vacate one of them in response to the
defendant’s postverdict motions, and the defendant would not have served
one less day in prison. Cf. State v. Nash, supra, 316 Conn. 669–70 n.19
(noting that defendant did not raise double jeopardy claim and that trial
court had merged intentional and reckless assault convictions, and had
sentenced him only on intentional assault conviction); see also State v.
Miranda, 317 Conn. 741, 755–56, 120 A.3d 490 (2015) (discussing use of
contingent vacatur of convictions in lieu of merger as double jeopardy
remedy). Second, subject to double jeopardy protections not at issue in this
appeal, my conclusion does nothing to preclude the state from obtaining
multiple convictions under the same statute potentially even for the same
act, so long as the state actually pursues that strategy at trial. See, e.g.,
State v. Wright, 319 Conn. 684, 696, 127 A.3d 147 (2015) (state may obtain
multiple convictions for aggravated sexual assault of minor for single act
that violates General Statutes § 53a-70c [a] [1] and [6] without committing
double jeopardy violation).