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STATE OF CONNECTICUT v. ROBERT KING
(SC 19339)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued November 10, 2015—officially released May 3, 2016
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, Margaret Gaffney Radionovas and Jayne
Kennedy, senior assistant state’s attorneys, and Emily
D. Trudeau, deputy assistant state’s attorney, for the
appellant (state).
Mark Rademacher, assistant public defender, for the
appellee (defendant).
Opinion
ESPINOSA, J. In this certified appeal, we must deter-
mine whether a jury’s verdict convicting the defendant,
Robert King, of both intentional and reckless assault
is inconsistent as a matter of law. The state appeals,
following our grant of certification,1 from the judgment
of the Appellate Court reversing the conviction of the
defendant of two counts of assault in the first degree
in violation of General Statutes § 53a-59 (a) (1) and (3).2
State v. King, 149 Conn. App. 361, 363, 87 A.3d 1192
(2014). The state argues that the Appellate Court
improperly concluded that the verdict was legally incon-
sistent because (1) the jury could have found the defen-
dant guilty of both intentional and reckless assault on
the basis of the evidence before it, and (2) the mental
states required by both offenses correspond to separate
results and, therefore, are not mutually exclusive. Addi-
tionally, the state contends that the Appellate Court
erroneously conflated the question of whether the
defendant’s due process right to notice had been vio-
lated with the question of whether the verdict was
legally consistent. The proper, independent analysis of
the due process issue, according to the state, demon-
strates that the defendant’s due process right to notice
of the charges against him was not violated.3 We agree
with the state that the verdict against the defendant is
consistent as a matter of law. We further conclude that
the defendant had sufficient notice of the charges
against him. Accordingly, we reverse the judgment of
the Appellate Court.
The jury reasonably could have found the following
facts. On December 18, 2010, Kyle Neri and Angela
Papp went to visit the victim, Kristen Severino, at her
residence in Waterbury. Neri and Papp had spent the
day getting high on crack cocaine and continued to do
so with the victim once they arrived at her residence.
While the three were sitting in the victim’s apartment,
the defendant entered and began to argue with Neri
over an unpaid $10 loan that Neri owed the defendant.
As the argument between Neri and the defendant con-
tinued to escalate, the defendant went to the apart-
ment’s kitchen and returned, brandishing a steak knife.
The defendant began waving the knife around and
shouting at Neri and Papp as Neri attempted to physi-
cally wrest the knife from the defendant’s control.
The victim then intervened in the altercation by
attempting to persuade the defendant that Neri should
not die over a $10 debt. When her verbal entreaties
proved unsuccessful, the victim attempted to physically
separate the combatants as the defendant continued to
swing the knife at Neri. The defendant then threw the
victim against a wall and waved the knife in front of her
face. The victim attempted to move and the defendant
rapidly stabbed her several times; he then fled the scene.
Neri and Papp left the apartment and Papp flagged
down a patrolling police officer, who then entered the
apartment with Papp and called an ambulance. Upon
arriving at the hospital, the victim received emergency
surgery on four stab wounds to her abdomen. The treat-
ing physician stated that had the victim not been
brought to the hospital and received treatment, she
likely would have bled to death from her wounds.
The defendant was arrested and charged in a substi-
tute information with both intentional and reckless
assault in the first degree. A jury trial was held in April,
2012, at which Neri, Papp, and the victim all testified.
On the basis of the witnesses’ testimony and a written
statement by the defendant that was read into evidence,
the jury found the defendant guilty of both charges. On
April 23, 2012, the defendant filed a motion for a new
trial pursuant to Practice Book § 42-53, arguing that the
convictions were legally inconsistent. The trial court
denied the defendant’s motion, stating that the jury
reasonably could have found that the victim was initially
stabbed when the defendant was recklessly swinging
the knife around and that the defendant then intention-
ally stabbed the victim when she intervened in the con-
flict between the defendant and Neri. The defendant
appealed to the Appellate Court, arguing that his convic-
tions were legally inconsistent and prosecuted based
on a theory of guilt of which he had never been notified.
Id., 363. The Appellate Court agreed with the defendant
and reversed the judgment of conviction and remanded
the case for a new trial. Id., 376. This certified appeal
followed.
I
In the present case, the state argues that the Appellate
Court erroneously concluded that the defendant’s con-
victions for intentional and reckless assault were legally
inconsistent. In its analysis, the Appellate Court rea-
soned that ‘‘[n]othing in the record’’ would have permit-
ted the jury to find other than that the defendant
intentionally assaulted the victim as part of ‘‘one contin-
uous act, unbroken in time and character.’’ Id., 374. As
a fair reading of the record reveals that the jury could
have credited the defendant’s account that he acciden-
tally stabbed the victim while flailing the knife at Neri
and also credited the testimony of the other witnesses
that the defendant intentionally stabbed the victim after
she intervened, we agree with the state and conclude
that the defendant’s convictions are not legally inconsis-
tent. Furthermore, even if the Appellate Court was cor-
rect that the record reflects that the state presented
evidence that the attack was one continuous act; id.;
our decision in State v. Nash, 316 Conn. 651, 114 A.3d
128 (2015), controls, and the defendant’s convictions
are not inconsistent as a matter of law.
Convictions are legally inconsistent when ‘‘a convic-
tion of one offense requires a finding that negates an
essential element of another offense of which the defen-
dant has also been convicted.’’ Id., 659. When con-
fronted with such a claim we carefully examine the
elements of both offenses. Id.; State v. Hinton, 227
Conn. 301, 313, 630 A.2d 593 (1993). In examining a
claim of legal inconsistency, we must ‘‘closely examine
the record to determine whether there is any plausible
theory under which the jury reasonably could have
found the defendant guilty of both offenses.’’ State v.
Nash, supra, 316 Conn. 663. Additionally, ‘‘in determin-
ing whether two mental states are mutually exclusive,
the court must consider each mental state as it relates
to the particular result described by the statute.’’ Id.,
664. The question of whether two convictions are legally
inconsistent is a question of law, over which we exer-
cise plenary review. Id., 659.
In the present case, the parties describe the assault
perpetrated by the defendant in two different ways. The
defendant argues that under the evidence presented,
the jury reasonably could have found that there was
only one continuous intentional assault on the victim
and that for the jury to have also found a reckless
assault would be legally inconsistent. Conversely, the
state argues that, under the same evidence, the jury
reasonably could have found that the assault occurred
in two phases, beginning first as a reckless assault and
then evolving into an intentional assault. We conclude
that under either the defendant’s version or the state’s
version, the verdict is not legally inconsistent.
Our recent decision in Nash addressed substantially
similar issues to those raised in the present case.4 In
Nash, the defendant, Kevin Nash, grew angry with his
friend, Tyrell Knott, when Knott began to spread rumors
about Nash’s sexuality. Id., 655. In order to ‘‘teach . . .
a lesson’’ to Knott, Nash drove to Knott’s home, entered
the backyard, and fired four or five shots from a hand-
gun at the second story of Knott’s house. Id. One of the
bullets penetrated the wall of the house and struck
Knott’s sister in the left buttock. Id. She was transported
to the hospital, successfully treated, and released. Id.
Following his arrest, Nash was charged and convicted
of, inter alia, the same offenses as the defendant in the
present case: intentional assault in the first degree in
violation of § 53a-59 (a) (1) and reckless assault in the
first degree in violation of § 53a-59 (a) (3). Id., 656.
On appeal to this court, Nash argued that his convic-
tions for both intentional and reckless assault in the
first degree, based on the same conduct, were legally
inconsistent. Id., 654. We disagreed and upheld Nash’s
convictions ‘‘because the two mental states required to
commit the offenses relate to different results.’’ Id., 666.
We observed that the ‘‘jury could have found that [Nash]
intended only to injure another person when he shot
into [Tyrell’s house] but that, in doing so, he recklessly
created a risk of that person’s death in light of the
circumstances surrounding his firing of the gun into
the dwelling.’’ Id., 667. Given the evidence before it, the
jury reasonably could have found that Nash possessed
the requisite mental states to convict him of both inten-
tional and reckless assault in the first degree. Id., 667–
68. Thus, the crimes of reckless and intentional assault
are not in and of themselves legally inconsistent.
We recognize that convictions are legally consistent
if there is ‘‘any plausible theory’’ under which the jury
reasonably could have found the defendant guilty of
both of the offenses that the defendant claims are legally
inconsistent. Id., 663. At trial in the present case, the jury
heard two accounts of the assault. First, the defendant’s
written statement,5 provided to a detective and intro-
duced into evidence by the state without objection from
the defense, described the stabbing as an accident that
occurred when he was swinging the knife at Neri and
the victim attempted to physically separate the combat-
ants. In the defendant’s account, he and Neri ‘‘got into
a tussle. [Neri] was trying to take the knife from me. I
know it was getting rough. That was when [the victim]
got into the middle of us. She was trying to break us
up.’’ While the victim was in between the defendant
and Neri, the defendant began ‘‘swinging the knife at
[Neri]. In the middle of that, [the victim] started scream-
ing . . . . That’s when I realized that she was hurt. At
first, I ain’t know what was wrong, but then I thought
about it. That’s when I knew that I had stabbed her.’’
Thus, if the jury credited the defendant’s statement, it
could have found that the defendant’s act of swinging
a knife at Neri in close quarters while the victim was
between them demonstrated ‘‘an extreme indifference
to human life,’’ and, that by doing so, the defendant
‘‘recklessly engage[d] in conduct which create[d] a risk
of death to another person,’’ as required by § 53a-59 (a)
(3) for a conviction of reckless assault in the first
degree.
Second, the testimony of Neri, Papp, and the victim
portrayed the defendant as intentionally stabbing the
victim after the victim interfered in the defendant’s
altercation with Neri. According to Neri, the victim
injected herself into the argument, stated that ‘‘nobody’s
going to get stabbed over $10,’’ and offered to pay the
defendant the money herself. The defendant then put
‘‘the knife to her face and [told] her to shut the fuck up.’’
After the victim attempted to move away, the defendant
‘‘stab[bed] her three times’’ on the ‘‘left side’’ of her
‘‘stomach area.’’ Consistent with Neri’s account, Papp
testified that the defendant ‘‘started swinging the knife
on [the victim]’’ and ‘‘stabbing her . . . over and over
and over, just going into [the victim].’’ Likewise, the
victim testified that she approached the defendant and
told him ‘‘that nobody should die and I would get him
the money, nobody needs to be killed tonight.’’ The
victim stated that the defendant then ‘‘threw me up
against the wall and put the knife in my face and was
screaming at me . . . and yelling at me and calling [me]
a bitch . . . .’’ The victim testified that the defendant
then ‘‘stabbed me . . . [i]n my stomach right here, and
three times over here on the side.’’ The jury reasonably
could have credited the combined testimony of the vic-
tim, Papp, and Neri to conclude that the defendant
acted with ‘‘intent to cause serious physical injury’’ in
violation of § 53a-59 (a) (1) when he stabbed the victim
at least three times with a steak knife.
We therefore agree with the state that the jury reason-
ably could have found that the defendant’s conduct
amounted to two separate acts. As the defendant was
charged with both reckless and intentional assault,6 the
jury could have found that the defendant was guilty of
both crimes by stabbing the victim while recklessly
swinging the knife at Neri and then intentionally stab-
bing the victim after she intervened and the defendant
threw her against the wall. The state’s exhibits 14 and
15 showed, and the Appellate Court noted, that the
victim had four stab wounds, and as Neri testified that
he only witnessed the defendant stab the victim three
times, the jury could have attributed the fourth stab
wound to the defendant’s testimony describing the stab-
bing as an accident that occurred when the victim got
in between the combatants. See State v. King, supra,
149 Conn. App. 364 n.2 (recognizing that photographic
evidence at trial established that there were four stab
wounds). Accordingly, the defendant’s convictions are
not legally inconsistent under the state’s argument that
the assault occurred in two reckless and intentional
phases, respectively.
Additionally, we observe that under the defendant’s
version that the assault only occurred in one intentional
episode, the convictions are not legally inconsistent as
the requisite mental states for the two convictions are
not mutually exclusive. As is clear from our recent
decision, a defendant may be convicted of crimes that
require differing mental states, so long as those states
relate to different criminal results. State v. Nash, supra,
316 Conn. 668–69; cf. State v. King, 216 Conn. 585, 594,
583 A.2d 896 (1990). The present case is akin to our
decision in Nash. Like Nash’s act of firing multiple shots
from a handgun into the second story of his friend’s
home, the jury reasonably could have found that when
the defendant stabbed the victim, he intended to ‘‘cause
serious injury to’’ her and that he also ‘‘recklessly
engaged in conduct which [created]’’ a risk of the vic-
tim’s death. See State v. Nash, supra, 666 n.15, 666–68.
That is, the defendant’s act of stabbing the victim is
consistent with two different mental states, each related
to two different results. Thus, even under the defen-
dant’s argument, the reasoning of Nash controls and the
verdict returned by the jury is not legally inconsistent.7
II
We next determine whether the Appellate Court prop-
erly concluded that the defendant was deprived of his
due process right to notice that he could be convicted
under both of the charges brought against him.
Although the Appellate Court somewhat overlaid its
due process and consistency of the verdict analyses,
its decision rested heavily on its determinations con-
cerning the defendant’s due process rights. State v.
King, supra, 149 Conn. App. 375. We conclude, how-
ever, that the defendant had constitutionally sufficient
notice of the charges being brought against him.
The following procedural facts are necessary to
resolve the question of whether the defendant had
proper notice of the charges against him. Following
his arrest, the defendant was charged in a two count
substitute information with two crimes: assault in the
first degree in violation of § 53a-59 (a) (1) and assault
in the first degree in violation of § 53a-59 (a) (3). See
footnote 2 of this opinion. At trial, the state did not
present the evidence in a manner that related specifi-
cally to one charge or the other. After the state rested
its case, the court discussed with the defendant his
decision not to testify and indicated the possible senten-
ces he could face if convicted. The court specifically
noted to the defendant that he could be ‘‘convicted
under both sub[divisions]’’ and explained how that
would affect his sentence. Prior to closing argument,
the court informed the jury that ‘‘to the extent that what
[an attorney] says about the law differs from what I
say, you have to follow my legal instructions . . . if
there’s any discrepancy you’ve got to follow my instruc-
tions.’’ During closing argument, the prosecutor stated
to the jury: ‘‘You may be wondering why there are two
charges. You have a variety of evidence to draw from
and I don’t know what you’ll find credible. If you find
[the defendant’s] statement credible, he’s saying he’s
waving the knife around, he’s angry with [Neri], and
[the victim] jumps in the middle, if you believe [the
defendant’s] statement you would look more to the
assault one, reckless indifference.’’
Following closing argument, the court instructed the
jury and informed it that it ‘‘must decide which testi-
mony to believe and which testimony not to believe.
You may believe all, none or any part of any witness’
testimony.’’ The court also reminded the jury that ‘‘argu-
ments and statements by the attorneys in final argument
or during the course of the case are not evidence.’’ The
court then explained the charges against the defendant
to the jury, noting that the defendant was ‘‘charged with
two crimes.’’ The court next explained the elements of
each crime to the jury. Following the delivery of the
jury charge, the court asked whether counsel had any
objection to the charge. Neither counsel objected. At
no point in the court’s instructions did it suggest that the
jury could not convict the defendant of both charges.
In considering the defendant’s inconsistent verdict
claim on appeal, the Appellate Court observed that ‘‘[i]n
determining whether a verdict is legally and logically
inconsistent . . . a reviewing court must also consider
the way in which the state presented the case to the
jury.’’ State v. King, supra, 149 Conn. App. 371. Accord-
ingly, the Appellate Court concluded that ‘‘[w]hile the
charging document in the present matter did not articu-
late that the two counts of assault in the first degree
were made in the disjunctive, our review of the record
and transcripts confirms that the state presented the
case in that manner.’’ Id., 373. Relying on the prosecu-
tor’s closing argument and the manner in which the
state presented its evidence, the Appellate Court deter-
mined that the defendant was deprived of his due pro-
cess right to notice that both charges were being
brought against him, and reversed the judgment of con-
viction and remanded the case for a new trial. Id.,
375–76.
On appeal before this court, the state argues that the
Appellate Court improperly applied the theory of the
case analysis by intertwining it with its legal consistency
of the verdict analysis. Accordingly, the state contends
that when analyzed properly, the defendant had suffi-
cient notice that he could be convicted of both charges
and that the Appellate Court erred in concluding other-
wise. In response, the defendant argues that the Appel-
late Court properly concluded that the state tried the
two assault charges in the disjunctive and that he was
deprived of his due process right to notice that he could
be convicted of both charges. We agree with the state.
As a preliminary matter, we observe that the Appel-
late Court indeed blended its due process analysis with
its legal consistency of the verdict analysis rather than
evaluating those two separate claims independently.
Although both claims arise from the same underlying
fundamental concern—namely whether a defendant’s
convictions were arrived at fairly and legitimately—
they are ultimately separate issues and reviewing courts
should evaluate them as such. The Appellate Court
framed its analysis in the following manner: ‘‘[I]n mak-
ing our assessment of whether the jury’s verdict in the
matter violates the defendant’s due process right
because, given the manner in which he was prosecuted
and the evidence in support of his culpability, he was
convicted after an inconsistent verdict, we look first to
the evidence and argument presented to the jury.’’ Id.,
373. Thus, the Appellate Court’s statement of the ana-
lytic framework under which to evaluate claims of legal
inconsistency appears to combine both our existing
legal consistency analysis as outlined in Nash and part I
of this opinion with the due process analysis we conduct
when the state alters its theory of the case on appeal.
A determination of whether a defendant has received
constitutionally sufficient notice of the charges to be
brought against him at trial is guided by the following
framework. A fundamental tenet of our due process
jurisprudence is that ‘‘[i]t is as much a violation of
due process to send an accused to prison following
conviction of a charge on which he was never tried as
it would be to convict him upon a charge that was never
made.’’ Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct.
514, 92 L. Ed. 644 (1948). Accordingly, the United States
Supreme Court has explained that ‘‘[t]o uphold a 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.’’ Dunn v. United States, 442 U.S. 100, 106, 99
S. Ct. 2190, 60 L. Ed. 2d 743 (1979). Reviewing courts,
therefore, cannot affirm a criminal conviction based on
a theory of guilt that was never presented to the jury
in the underlying trial. Chiarella v. United States, 445
U.S. 222, 236, 100 S. Ct. 1108, 63 L. Ed. 2d 348 (1980).
Principles of due process do not allow the state, on
appeal, to rely on a theory of the case that was never
presented at trial. State v. Carter, 317 Conn. 845, 853–55,
120 A.3d 1229 (2015). Although we recognize that the
finder of fact may consider all of the evidence properly
before it, in order for us to uphold the state’s theory
of the case on appeal, that theory must have been ‘‘not
merely before the jury due to an incidental reference,
but as part of a coherent theory of guilt that, upon
[review of] the principal stages of trial, can be character-
ized as having been presented in a focused or otherwise
cognizable sense.’’ (Internal quotation marks omitted.)
State v. Robert H., 273 Conn. 56, 83, 866 A.2d 1255
(2005). Essentially, the state may not ‘‘pursue one
course of action at trial and later, on appeal, argue that
a path [it] rejected should now be open to [it] . . . .
To rule otherwise would permit trial by ambuscade.’’
(Internal quotation marks omitted.) State v. Scruggs,
279 Conn. 698, 719, 905 A.2d 24 (2006). Accordingly, on
appeal, the state may not construe evidence adduced
at trial to support an entirely different theory of guilt
than the one that the state argued at trial. See State
v. Fourtin, 307 Conn. 186, 207–10, 209 n.18, 52 A.3d
674 (2012).
Whether a defendant has received constitutionally
sufficient notice of the charges of which he was con-
victed may be determined by a review of the relevant
charging document, ‘‘the theory on which the case was
tried and submitted to the jury,’’ and the trial court’s
jury instructions regarding the charges. See, e.g., Dunn
v. United States, supra, 442 U.S. 106. Upon our review
of the substitute information, the state’s evidence, and
the trial court’s jury instructions, we conclude that the
defendant in the present case had notice of the charges
being brought against him and that his due process
rights were not thereby violated. Although the state
prosecuted the case at times in a manner that was less
than precise, we conclude that the state presented to
the jury ‘‘in a focused or otherwise cognizable sense’’
that the defendant could be convicted of both charges
and that such a theory was not a mere ‘‘ ‘incidental
reference.’ ’’ State v. Robert H., supra, 273 Conn. 83.
First, the substitute information charged the defen-
dant with both reckless and intentional assault, and not
one offense or the other. Our previous decisions have
long recognized that the information serves to notify
the defendant of the charges against which he must
defend at trial. See State v. James, 247 Conn. 662, 679,
725 A.2d 316 (1999); State v. Tanzella, 226 Conn. 601,
608, 628 A.2d 973 (1993); State v. Spigarolo, 210 Conn.
359, 382, 556 A.2d 112, cert. denied, 493 U.S. 933, 110
S. Ct. 322, 107 L. Ed. 2d 312 (1989); see also Practice
Book § 36-13 (‘‘[t]he information shall state for each
count the official or customary citation of the statute,
rule, regulation, or other provision of law which the
defendant is alleged to have violated’’). The substitute
information in the present case contains two separate
charges—one for each offense—and nothing in the
charging document indicates that it was the state’s
intent to prosecute the charges in the alternative rather
than to present both charges to the jury at trial.8 Further-
more, had the defendant been unclear about the charges
presented in the substitute information, he could have
moved for the state to file a bill of particulars pursuant
to Practice Book § 41-20.
Second, nothing in the manner in which the state
prosecuted the case encouraged the defendant to craft
his defense in a certain way or to forsake defending
against evidence he believed the state would not pre-
sent. In that regard, the present case is readily distin-
guishable from our decision in Scruggs in which we
determined that the due process right of the defendant
was violated because the state influenced defense strat-
egy by putting the defendant on notice of its theory of
the case but later argued in support of the conviction
based on a theory that it had not previously relied on
and that the defendant was not on notice to defend
against. State v. Scruggs, supra, 279 Conn. 718. In
Scruggs, the defendant was charged with risk of injury
to a child and, at trial, the state, in its arguments against
the defendant’s motion for a judgment of acquittal at
the close of the state’s case, asserted its theory that
the living conditions in the defendant’s home were a
risk to any child, rather than to the victim in the particu-
lar case who suffered from serious mental and physical
health issues. Id., 717–18. We concluded that the state’s
representation did not place the defendant on notice
that she could be convicted if the state proved merely
that the living conditions in her apartment presented a
risk to the particularly fragile victim. We concluded,
therefore, that the state could not argue to uphold the
conviction on those grounds and, furthermore, that the
statute the defendant had been convicted of violating
was unconstitutionally vague as applied to her conduct.
Id., 718–19.
Although the state in the present case did not present
its evidence in a manner that specifically related to
one charge or the other, after our review of the state’s
evidence as a whole it is clear that the state intended
to try both charges in the substitute information.9 As
fully outlined in part I of this opinion, the state called
Papp, Neri, and the victim as witnesses. The testimony
of all three witnesses described—with some minor vari-
ations between the accounts—an intentional assault in
which the defendant grew angry with the victim and
intentionally stabbed her after she intervened in the
defendant’s conflict with Neri. Accordingly, this particu-
lar evidence supported the state’s charge of intentional
assault. In addition to the evidence describing an inten-
tional assault, the state also introduced the defendant’s
written statement that described an accidental stabbing
of the victim while the defendant was flailing the knife
at Neri.10 The content of the defendant’s statement is
clearly evidence supporting the charge of reckless
assault and not intentional assault. Thus, the state intro-
duced evidence to support both charges listed in the
substitute information.
We agree with the state that the prosecutor’s failure
to specifically delineate the evidence between the
charges is not equivalent to a prosecutor who does
specify the evidence underlying a charge and then sub-
sequently adopts a different evidentiary justification for
that charge. Indeed, a jury may consider all evidence
properly before it and, as we determined in part I of
this opinion, the jury in the present case reasonably
could have found that the defendant was guilty of both
charges based on that evidence—regardless of how the
state organized it. Furthermore, the state took no action
at trial that would have induced the defendant to refrain
from defending against all of the evidence that had been
introduced or to believe that the evidence introduced
related to only one charge and not to the other. As
the defendant was charged in a two count substitute
information, and the state introduced evidence on both
of the charges and did not foreclose the defendant’s
reliance on that evidence in any manner, the defendant
should have been alerted that he would have to defend
against both charges.
Third, the court’s jury instructions, as a reflection of
the charging document, demonstrate that the defendant
had notice of his potential to be convicted of both
offenses. In delivering its instructions, the trial court
informed the jury that the defendant was ‘‘charged with
two crimes’’ and instructed the jury to determine
‘‘whether the accused is guilty or not guilty of each of
the crimes charged in the information and whether your
verdict is unanimous as to each charge.’’ The trial court
then explained the elements of both reckless and inten-
tional assault to the jury. When the trial court asked
both counsel if they had any comments or objections
to the jury instructions as they were delivered, neither
counsel objected.
Thus, the trial court’s jury instructions regarding the
two charges reaffirm their status in the substitute infor-
mation as two separate and distinct charges, rather than
charges in the alternative. In explaining the two charges
to the jury, the trial court never stated or implied that
the two offenses were prosecuted in the alternative, and
that the jury would have to make a decision between the
charges if it were to find the defendant guilty.11 Although
the Appellate Court correctly recognized that the trial
court never explicitly informed the jury that it could
deliver a guilty verdict on both charges, it also never
instructed the jury that it could find the defendant guilty
only on one charge but not the other. State v. King,
supra, 149 Conn. App. 366. Additionally, had either the
state or the defendant disagreed with the trial court’s
instructions on the charges, counsel had the opportu-
nity to object or to ask the court to clarify its instruc-
tions, yet they did not do so. The trial court’s
instructions did recognize, however, that there were
two charges, and instructed the jury to reach a verdict
on both charges. Thus, on the basis of the charges listed
in the substitute information, the evidence introduced
by the state at trial, and the trial court’s jury instructions
on the charges, the defendant had sufficient notice that
he could be convicted of both intentional and reck-
less assault.
Finally, because the defendant, the Appellate Court,
and the dissenting justices all rest their conclusions on
the due process claim in part on the content of the
prosecutor’s closing argument, we briefly address the
significance of closing argument in this context. See
id., 373. In addition to the substitute information, the
state’s reliance on the evidence presented at trial, and
the jury instructions, the state’s closing argument is
another factor that is relevant to reviewing courts when
determining whether the state presented a particular
theory of the case at trial. See Dunn v. United States,
supra, 442 U.S. 106 n.4; Cola v. Reardon, 787 F.2d 681,
694 (1st Cir.) (‘‘summation is one of various factors that
must be considered in inquiries under Dunn’’), cert.
denied, 479 U.S. 930, 107 S. Ct. 398, 93 L. Ed. 2d 351
(1986). Summation, therefore, can often provide a
reviewing court with needed clarity in those cases
where the state’s theory at trial is not clear upon review
of the other factors.12 Although closing arguments are
one of several factors we examine in a theory of the
case analysis, we also recognize that closing arguments
are often ambiguous and imprecisely phrased given that
most attorneys do not appear before the jury like an
actor on the stage with every word, phrase, and inflec-
tion memorized and exhaustively rehearsed in advance.
See State v. Warholic, 278 Conn. 354, 368, 897 A.2d 569
(2006) (‘‘closing arguments of counsel . . . are seldom
carefully constructed in toto before the event; improvi-
sation frequently results in syntax left imperfect and
meaning less than crystal clear’’ [internal quotation
marks omitted]).
In the present case, the defendant relies on a state-
ment that the prosecutor made during closing argu-
ment. That statement, however, was ambiguously
phrased in such a way that makes it difficult for us to
draw any definite conclusions from the closing argu-
ment regarding the state’s theory of the case. The prose-
cutor briefly touched on the two charges while
addressing the jury during summation: ‘‘You may be
wondering why there are two charges. You have a vari-
ety of evidence to draw from and I don’t know what
you’ll find credible. If you find [the defendant’s] state-
ment credible . . . you would look more to the assault
[charge], reckless indifference.’’ It is somewhat ambigu-
ous as to what the prosecutor was actually attempting
to convey to the jury with this statement. Had the prose-
cutor meant to frame the charges in the disjunctive,
she could have clearly stated to the jury that crediting
the defendant’s statement would support a conviction
of reckless assault whereas crediting the testimony of
the victim, Neri, and Papp would support a conviction
of intentional assault. Likewise, the prosecutor could
have stated that the evidence overall was sufficient to
demonstrate the defendant’s guilt as to both charges
and that if the jury were to credit the defendant’s state-
ment and the witnesses’ testimony, the defendant could
be convicted of both offenses. As stated, however, the
prosecutor’s words did not clearly convey either of
these options to the jury. The Appellate Court interpre-
ted these remarks to conclude that the state had prose-
cuted its case in the disjunctive and that the defendant
could be convicted of only one offense or the other.
State v. King, supra, 149 Conn. App. 373. It is apparent,
however, that the Appellate Court’s blending of its due
process and legal consistency analyses had the unin-
tended consequence of improperly refocusing the target
of its inquiry. The Appellate Court determined that the
state’s failure to marshal the evidence in a particular
manner during closing argument for the jury amounted
to a lack of sufficient notice for the defendant. Id.,
373–74. In doing so, the Appellate Court heavily relied
on the content of the prosecutor’s closing argument
to support its conclusion that the two charges were
prosecuted in the disjunctive. Id., 373.
The prosecutor’s statement that the Appellate Court
found to be determinative is an isolated, ambiguous
statement made to the jury. That statement alone, when
placed in the context of the entire trial—the substitute
information, the evidence presented by the state, the
court’s jury instructions—cannot serve as a basis for
us to conclude that the defendant had no notice of the
charges against him. A decision reversing the defen-
dant’s convictions on the basis of one unclear statement
and against the combined weight of the information,
evidence, and jury instructions would therefore rest
on an infirm foundation.13 We have never held that a
prosecutor’s single, unclear statement during closing
argument can deprive a defendant of his due process
right to notice. For us to do so would grant a windfall
benefit to the defendant completely incommensurate
with the harm—if any—suffered due to a prosecutor’s
lack of clarity during closing argument. This is particu-
larly apparent in the present case, where the prosecu-
tor’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.14
In conclusion, when viewed in the context of the
substitute information, the state’s evidence at trial, and
the jury instructions, the defendant had sufficient notice
that he could be convicted of both reckless and inten-
tional assault. Accordingly, the manner in which the
defendant was convicted satisfies the requirements of
due process.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
render judgment affirming the judgment of the trial
court.
In this opinion ROGERS, C. J., and ZARELLA and
EVELEIGH, Js., concurred.
1
We granted the state’s petition for certification, limited to the following
two issues: (1) ‘‘Did the Appellate Court properly determine that the jury
[verdict] finding the defendant guilty of both intentional and reckless assault
[was] legally inconsistent and, therefore, had to be reversed?’’ and (2) ‘‘If
the answer to the first question is in the affirmative, did the Appellate Court
properly determine that a new trial was the correct remedy?’’ State v. King,
312 Conn. 917, 917–18, 94 A.3d 642 (2014). The state has not briefed the
second certified issue and concedes that a new trial would be the proper
remedy.
2
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 . . . .’’
3
We address this question although we did not originally certify it. In its
briefing and at oral argument before this court, the state requested that we
address the Appellate Court’s application of due process notice analysis in
the present case given that the Appellate Court’s decision rests heavily on
the application of due process principles.
4
The Appellate Court released its decision in the present case on April
8, 2014, and we therefore recognize that the Appellate Court did not have
the advantage of relying on the reasoning of our decision in Nash, which
was not decided until May 5, 2015.
5
The defendant chose not to testify at trial.
6
The specifics of how the defendant was charged and how the case was
presented to the jury are discussed in greater detail in part II of this opinion.
7
Conversely, our decision in State v. King, supra, 216 Conn. 585, is distin-
guishable from the present case on these very grounds. In King, the defen-
dant was convicted of both attempt to commit murder and reckless assault
after he ignited the cell of a fellow prisoner using an improvised incendiary
device. Id., 586, 588. We held that the defendant’s convictions could not
stand, as the mental states for the intentional crime of attempt to commit
murder and the crime of reckless assault were mutually exclusive because
the defendant could not have both intentionally and recklessly lit the cell
on fire. Id., 594–95.
8
The dissent arrives at the unsupported conclusion that, although the
substitute information contains both charges, both the substitute informa-
tion and the jury instructions are ‘‘fairly open-ended’’ and, therefore, do not
provide notice to the defendant. See footnote 9 of the dissenting opinion.
The purpose of the information is to provide a defendant with notice of the
charges against him and the jury instructions serve as a reflection of those
charges. To discount their significance only because charging instruments
and jury instructions follow a similar format in every case would dramatically
and unnecessarily narrow the ken of our due process inquiry in this context.
9
As the dissent correctly observes, much of the case law concerning the
theory of the case doctrine initially developed in the context of sufficiency
of the evidence claims. See State v. Robert H., supra, 273 Conn. 82–83. To
be clear, the defendant in the present case does not claim that the evidence
is insufficient to sustain his convictions, but rather that his convictions were
legally inconsistent and that he was not on notice that he could be convicted
of both charges. Throughout its analysis, the dissent appears at times to
view the present case through the lens of a sufficiency of the evidence
claim. This is evident in the dissent’s hefty reliance on State v. Carter, supra,
317 Conn. 856, in which we resolved the defendant’s claims on sufficiency
grounds and not under the theory of the case doctrine.
10
As the defendant did not testify at trial, the statement was read into
evidence by Detective George Tirado of the Waterbury Police Department,
who initially interviewed the defendant and took his statement following
the defendant’s arrest on unrelated drug charges.
11
Although not reflected in the jury instructions, it was evidently the
understanding of the trial court that the defendant was being prosecuted
on both charges and could be convicted of both. While discussing with the
defendant his decision not to testify, the trial court outlined the possible
sentences the defendant was facing if convicted and informed the defendant
what his potential sentence would be if convicted of both charges listed in
the substitute information.
12
When examining the evidence at trial, we may also consider how the
state presented and relied on that evidence during any ‘‘legal argument’’ on
dispositive motions. State v. Robert H., supra, 273 Conn. 83. Such an inquiry
falls within the purview of our analysis of how the state relied on the
evidence at trial and is therefore distinct from our examination of the state’s
closing arguments. Our decision in Robert H. is illustrative of this approach.
In Robert H., the defendant moved for a judgment of acquittal following the
close of the state’s case and prior to presenting his own defense. Id., 61. In
argument in response to the defendant’s motion, the prosecutor articulated
the exact evidentiary bases supporting each charge against the defendant.
Id., 61–62. Accordingly, the state was thereafter bound by the theory of the
defendant’s guilt that it presented in its legal argument against the defen-
dant’s motion. Id., 84–85.
13
We respectfully disagree with the approach of the dissent, which relies
solely on the prosecutor’s statement during closing argument to the exclu-
sion of the contents of the substitute information and the jury instructions
and which does not address the state’s reliance on the evidence introduced
at trial.
14
Indeed, the trial court even interrupted the prosecutor’s closing argu-
ment to ensure that the jury understood this distinction once the prosecutor
began to comment on the law of the case during her argument.