State v. Sivri

Peters, C. J.,

dissenting. I agree with every part of the majority opinion except for its conclusion, in part I, that the state produced sufficient evidence to sustain the defendant’s conviction of murder in violation of General Statutes § 53a-54a. On that issue, I respectfully dissent.

I cannot and do not disagree with the basic principles that govern this appeal. “There is no distinction between circumstantial and direct evidence so far as probative force is concerned. State v. Smith, 212 Conn. 593, 599, 563 A.2d 671 (1989); State v. Uretek, Inc., 207 Conn. 706, 715, 543 A.2d 709 (1988); State v. Walker, 206 Conn. 300, 315-16, 537 A.2d 1021 (1988); State v. Magnano, 204 Conn. 259, 287, 528 A.2d 760 (1987); State v. Rodgers, 198 Conn. 53, 58, 502 A.2d 360 (1985); State v.D'Antuono, 186 Conn. 414, 421, 441 A.2d 846 (1982). Further, the evidence presented at trial must be construed in a fashion most favorable to sustaining the jury’s verdict. State v. Mandrell, 199 Conn. 146, 154, 506 A.2d 100 (1986); State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983); State v. Brice, 186 Conn. 449, 459, 442 A.2d 906 (1982); State v. Jackson, 176 Conn. 257, 262, 407 A.2d 948 (1978); State v. Brunori, 22 Conn. App. 431, 435, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). . . . [The trier’s] findings of fact are entitled to great weight and . . . a conviction based on the facts found by the trier will be affirmed if the trier of fact ‘could reasonably have inferred [from the evidence] that the defendant was guilty beyond a reasonable doubt.’ State v. Cobbs, 203 Conn. 4, 7, 522 A.2d 1229 (1987); State v. Mandrell, supra, 153—54; State v. Scielzo, 190 Conn. 191, 196, 460 *163A.2d 951 (1983); State v. D’Antuono, supra, 421; State v. Perez, 182 Conn. 603, 607, 438 A.2d 1149 (1981).” State v. Osman, 218 Conn. 432, 436, 589 A.2d 1227 (1991).

Our cases also teach us, however, that the trier’s findings of fact are not conclusive “where the state’s evidence is improbable and unconvincing and where all the facts found are insufficient to prove the guilt of the defendant beyond a reasonable doubt. State v. Cobbs, supra, [203 Conn.] 11, 13; State v. Mandrell, supra, [199 Conn.] 154; State v. Payne, 186 Conn. 179, 184, 440 A.2d 280 (1982); State v. Mayell, 163 Conn. 419, 427-28, 311 A.2d 60 (1972); State v. Kelsey, 160 Conn. 551, 553-54, 274 A.2d 151 (1970).” State v. Osman, supra, 218 Conn. 437. Because of the great deference that we afford to the factual findings of the trier, such cases are and should be rare. I am nonetheless persuaded that this case, like State v. Carpenter, 214 Conn. 77, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert. denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 181 (1992), is one of those rare instances in which the reasonable inferences to be drawn from the record do not support a finding of guilt.

The issue of sufficiency of the evidence relates to whether the state established, beyond a reasonable doubt, that the defendant had the intent to kill the victim. We are all in agreement that the record discloses no evidence of motive, premeditation or preplanning on the defendant’s part. The record is entirely barren of any facts that would indicate the nature of the precipitating events that led the defendant to kill the victim. The majority opinion hypothesizes certain scenarios consistent with the jury’s finding of the defendant’s intent to kill, all of which include the defendant’s possession of a weapon at the crucial time in the family room.

*164The absence of any factual basis for the circumstances of the killing makes other scenarios, inconsistent with the defendant’s intent to kill, equally as credible as those hypothesized by the majority opinion. It is quite possible that the defendant, not believing that the services that the victim was prepared to offer were limited to a massage, became enraged at her refusal to have intercourse, and that their verbal sparring escalated to a physical confrontation. In the course of that escalation, if the defendant displayed a weapon to frighten the victim into submitting to intercourse, the victim may have, to the defendant’s surprise, forcibly resisted, causing the defendant to panic and lash out, recklessly or negligently, without consciously intending to cause the victim’s death. Alternatively, the victim herself, having previously encountered clients who misunderstood her proffered services, may have carried a knife with which she threatened the defendant when he sought to force himself on her. The defendant’s efforts to disarm the victim may have led to her injury and to the same ultimate result. The evidence produced at trial does not enable us to determine which, if any, of these scenarios accurately depicts what transpired between the defendant and the victim.

Events that transpired after the killing do not furnish a factual predicate from which inferences may properly be drawn about the defendant’s intent at the time of the killing. The majority opinion attaches significance to the defendant’s failure to summon medical assistance for the victim. That failure would be probative if there were evidence that the victim’s injury might have responded to prompt medical intervention. See State v. Francis, 228 Conn. 118, 129, 635 A.2d 762 (1993); State v. Greenfield, 228 Conn. 62, 78, 634 A.2d 879 (1993) (victim found alive and died at the hospital); see also State v. Carpenter, supra, 214 Conn. 83-84. In this case, however, there was no evidence that the *165injuries inflicted did not cause immediate death. Similarly, we have never held that evidence of consciousness of guilt independently supports a reasonable inference about the defendant’s mental state when he caused the death of the victim, and other courts have rejected such inferences as untenable. See State v. James, 819 P.2d 781 (Utah 1991); Stafford v. People, 154 Colo. 113, 388 P.2d 774 (1964). To the contrary, we have declared it impermissible for a jury to infer intent to commit murder from the fact of the death of the victim, even from the fact of the victim’s death at the hands of the defendant. State v. Crafts, 226 Conn. 237, 248, 627 A.2d 877 (1993).

In sum, the defendant’s conviction of murder can only be sustained by a series of speculations about the manner and circumstances in which the defendant brought about the victim’s death. Neither singularly nor cumulatively can speculative evidence suffice to support an inference or series of inferences from which an element of a crime can be found to have been proven beyond a reasonable doubt.

Concededly, no clear line of demarcation exists between a permissible inference and an impermissible speculation. Nonetheless, on this record, I am persuaded that this case, in which the state had to prove not only that the defendant had killed the victim but that he had done so with intent to kill, falls on the side of impermissible speculation. When there are no ascertainable facts from which the appropriate inferences may reasonably be drawn, the presumption of innocence requires a conviction to be set aside. See State v. Skipper, 228 Conn. 610, 621-22, 637 A.2d 1101 (1994); State v. Hammond, 221 Conn. 264, 287-88, 604 A.2d 793 (1992).

It is not difficult to reconstruct what probably happened in the jury room in this case. The jury’s decision to convict the defendant of this crime was very likely *166the result of the unenviable choice that the jury faced because it was not given a proper charge on lesser included offenses. We are all in agreement that the state produced substantial evidence that the defendant had been materially involved, in some fashion, in the victim’s death. The jury could either speculate that the defendant had entertained the intent to kill the victim, or it could permit the defendant to walk away free. In these circumstances, it is entirely understandable that the jury chose to return a verdict of guilty of murder.

I recognize that, if the defendant is acquitted of the only crime with which he was charged, a retrial on lesser included offenses may encounter constitutional difficulties. I would not, however, anticipate at this juncture whether the principles of double jeopardy would bar such a retrial.

Accordingly, I respectfully dissent.