Date: 04-21-2016

Case Style: STATE OF CONNECTICUT v. ROBERT KING

Case Number: SC 19339

Judge: Carmen E. Espinosa

Court: Connecticut Supreme Court

Plaintiff's Attorney: Jennifer F. Miller, Maureen Platt, Margaret Gaffney Radionovas, Jayne Kennedy, 0Emily D. Trudeau

Defendant's Attorney: Mark Rademacher

Description: In this certified appeal, we must determine 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 inviolationofGeneralStatutes§ 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 improperlyconcludedthattheverdictwaslegallyinconsistentbecause(1)thejurycouldhavefoundthedefendant guilty of both intentional and reckless assault on the basis of the evidence before it, and (2) the mental statesrequiredbybothoffensescorrespondtoseparate resultsand,therefore,arenotmutuallyexclusive.Additionally, the state contends that the Appellate Court erroneously conflated the question of whether the defendant’s due process right to notice had been violated with the question of whether the verdict was legally consistent. The proper, independent analysis of the due process issue, according to the state, demonstrates 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 continued to escalate, the defendant went to the apartment’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 physically 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 provedunsuccessful,thevictimattemptedtophysically separate the combatants as the defendant continued to swing the knife at Neri. The defendant then threw the victimagainstawallandwavedtheknifeinfrontofher face. The victim attempted to move and the defendant rapidlystabbedherseveraltimes;hethenfledthescene.
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 surgeryonfourstabwoundstoherabdomen.Thetreating 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 substitute 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 statementbythedefendantthatwasreadintoevidence, the jury found the defendant guilty of both charges. On April 23, 2012, the defendant filed a motion for a new trialpursuanttoPracticeBook § 42-53,arguingthatthe convictions were legally inconsistent. The trial court denied the defendant’s motion, stating that the jury reasonablycouldhavefoundthatthevictimwasinitially stabbed when the defendant was recklessly swinging the knife around and that the defendant then intentionally stabbed the victim when she intervened in the conflict between the defendant and Neri. The defendant appealedtotheAppellateCourt,arguingthathisconvictions were legally inconsistent and prosecuted based onatheoryofguiltofwhichhehadneverbeennotified. Id., 363.The AppellateCourt agreedwith thedefendant andreversedthejudgment ofconvictionandremanded the case for a new trial. Id., 376. This certified appeal followed. I Inthepresentcase,thestatearguesthattheAppellate Court erroneously concluded that the defendant’s convictionsforintentionalandrecklessassaultwerelegally inconsistent. In its analysis, the Appellate Court reasonedthat‘‘[n]othingintherecord’’wouldhavepermitted the jury to find other than that the defendant intentionallyassaultedthevictimaspartof‘‘onecontinuous 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 accidentally stabbed the victim while flailing the knife at Neri and also credited the testimony of the other witnesses thatthedefendantintentionallystabbedthevictimafter she intervened, we agree with the state and conclude thatthedefendant’sconvictionsarenotlegallyinconsistent. Furthermore, even if the Appellate Court was correct 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 essentialelementofanotheroffenseofwhichthedefendant has also been convicted.’’ Id., 659. When confronted 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 determining 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.Thequestionofwhethertwoconvictionsarelegally inconsistent is a question of law, over which we exercise plenary review. Id., 659. In the present case, the parties describe the assault perpetratedbythedefendantintwodifferentways.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,TyrellKnott,whenKnottbegantospreadrumors about Nash’s sexuality. Id., 655. In order to ‘‘teach . . . alesson’’toKnott,NashdrovetoKnott’shome,entered the backyard, and fired four or five shots from a handgun at the second story of Knott’s house. Id. One of the bullets penetrated the wall of the house and struck Knott’ssisterintheleftbuttock.Id.Shewastransported 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 convictions 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 committheoffensesrelatetodifferentresults.’’Id.,666. Weobservedthatthe‘‘jurycouldhavefoundthat[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 requisitemental states toconvict him ofboth intentional 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 bothoftheoffensesthatthedefendantclaimsarelegally inconsistent.Id.,663.Attrialinthepresentcase,thejury heardtwoaccountsoftheassault.First,thedefendant’s written statement,5 provided to a detective and introducedintoevidencebythestatewithoutobjectionfrom the defense, described the stabbing as an accident that occurred when he was swinging the knife at Neri and thevictimattemptedtophysicallyseparatethecombatants. 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].Inthemiddleofthat,[thevictim]startedscreaming . . . . 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 injectedherselfintotheargument,statedthat‘‘nobody’s going to get stabbed over $10,’’ and offered to pay the defendant the money herself. The defendant then put ‘‘theknifetoherfaceand[told]hertoshutthefuckup.’’ Afterthevictimattemptedtomoveaway,thedefendant ‘‘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 victim, 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. Wethereforeagreewiththestatethatthejuryreasonably could have found that the defendant’s conduct amounted to two separate acts. As the defendant was charged withboth reckless and intentionalassault,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 stabbing 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 woundtothedefendant’stestimonydescribingthestabbing 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 versionthattheassaultonlyoccurredinoneintentional 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 relatetodifferentcriminalresults. 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 decisioninNash.LikeNash’sactoffiringmultipleshots from a handgun into the second story of his friend’s home, the jury reasonably could have found that when thedefendantstabbedthevictim,heintendedto‘‘cause serious injury to’’ her and that he also ‘‘recklessly engaged in conduct which [created]’’ a risk of the victim’s death. See State v. Nash, supra, 666 n.15, 666–68. That is, the defendant’s act of stabbing the victim is consistentwithtwodifferentmentalstates,eachrelated to two different results. Thus, even under the defendant’sargument,thereasoningofNashcontrolsandthe verdict returned by the jury is not legally inconsistent.7 II
WenextdeterminewhethertheAppellateCourtproperly 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 concerning the defendant’s due process rights. State v. King, supra, 149 Conn. App. 375. We conclude, however, 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 specifically to one charge or the other. After the state rested its case, the court discussed with the defendant his decisionnottotestifyandindicatedthepossiblesentences 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, thecourtinformedthejurythat‘‘totheextentthatwhat [an attorney] says about the law differs from what I say, you have to follow my legal instructions . . . if there’sanydiscrepancyyou’vegottofollowmyinstructions.’’ 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 testimony to believe and which testimony not to believe. You may believe all, none or any part of any witness’ testimony.’’Thecourtalsoremindedthejurythat‘‘argumentsandstatementsbytheattorneysinfinalargument or during the course of the case are not evidence.’’ The court then explained the charges against the defendant tothejury,notingthatthedefendantwas‘‘chargedwith 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 nopointinthecourt’sinstructionsdiditsuggestthatthe jury could not convict the defendant of both charges.
In considering the defendant’s inconsistent verdict claimonappeal,theAppellateCourtobservedthat‘‘[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. Accordingly, the Appellate Court concluded that ‘‘[w]hile the chargingdocumentinthepresentmatterdidnotarticulate 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 prosecutor’s closing argument and the manner in which the state presented its evidence, the Appellate Court determined that the defendant was deprived of his due process right to notice that both charges were being brought againsthim, andreversed thejudgment ofconviction 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 caseanalysisbyintertwiningitwithitslegalconsistency of the verdict analysis. Accordingly, the state contends that when analyzed properly, the defendant had sufficient notice that he could be convicted of both charges and that the Appellate Court erred in concluding otherwise. In response, the defendant argues that the Appellate Court properly concluded that the state tried the two assault charges in the disjunctive and that he was deprivedofhisdueprocessrighttonoticethathecould be convicted of both charges. We agree with the state. As a preliminary matter, we observe that the Appellate 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— theyareultimatelyseparateissuesandreviewingcourts should evaluate them as such. The Appellate Court framed its analysis in the following manner: ‘‘[I]n making 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 analyticframeworkunderwhichtoevaluateclaimsoflegal inconsistency appears to combine both our existing legalconsistencyanalysisasoutlinedinNashandpartI ofthisopinionwiththedueprocessanalysisweconduct when the state alters its theory of the case on appeal. Adeterminationofwhetheradefendanthasreceived 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 itwouldbetoconvicthimuponachargethatwasnever made.’’ Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514,92L.Ed.644(1948).Accordingly,theUnitedStates SupremeCourthasexplainedthat‘‘[t]oupholdaconviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basicnotionsofdueprocess.Fewconstitutionalprinciplesaremorefirmlyestablishedthanadefendant’sright 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, cannotaffirm acriminal convictionbased 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 presentedattrial.Statev.Carter,317Conn.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 [reviewof]theprincipalstagesoftrial,canbecharacterizedashavingbeenpresentedinafocusedorotherwise 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 convicted 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 defendantwithbothrecklessandintentionalassault,andnot 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 thecharges in the alternative rather thantopresentbothchargestothejuryattrial.8Furthermore,hadthedefendantbeenunclearaboutthecharges 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 present. In that regard, the present case is readily distinguishable from our decision in Scruggs in which we determined that the due process right of the defendant wasviolatedbecausethestateinfluenceddefensestrategy 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 toachildand,attrial,thestate,initsargumentsagainst 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 risktoanychild,ratherthantothevictimintheparticular case who sufferedfrom 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 wasunconstitutionallyvagueasappliedtoherconduct. Id., 718–19. Althoughthestateinthepresentcasedidnotpresent 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 ofallthreewitnessesdescribed—withsomeminorvariations 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’sconflictwithNeri.Accordingly,thisparticular evidence supported the state’s charge of intentional assault. In addition to the evidence describing an intentional assault, the state also introduced the defendant’s writtenstatementthatdescribedanaccidentalstabbing 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 assaultandnotintentionalassault.Thus,thestateintroduced 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 subsequentlyadoptsadifferentevidentiaryjustificationfor 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 stateorganizedit.Furthermore,thestatetooknoaction attrialthatwouldhaveinducedthedefendanttorefrain fromdefendingagainstalloftheevidencethathadbeen 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 thechargingdocument,demonstratethatthedefendant had notice of his potential to be convicted of both offenses. In delivering its instructions, the trial court informedthejurythatthedefendantwas‘‘chargedwith two crimes’’ and instructed the jury to determine ‘‘whether the accused is guilty or not guilty of each of thecrimeschargedintheinformationandwhetheryour verdictis unanimousas toeach charge.’’Thetrial court
thenexplainedtheelementsofbothrecklessandintentional 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 twochargesreaffirmtheirstatusinthesubstituteinformationastwoseparateanddistinctcharges,ratherthan chargesinthealternative.Inexplainingthetwocharges to the jury, the trial court never stated or implied that thetwooffenseswereprosecutedinthealternative,and thatthejurywouldhavetomakeadecisionbetweenthe chargesifitweretofindthedefendantguilty.11Although 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 instructedthejurythatitcouldfindthedefendantguilty 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 opportunity to object or to ask the court to clarify its instructions, 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 onbothcharges.Thus,onthebasisofthechargeslisted in the substitute information, the evidence introduced bythestateattrial,andthetrialcourt’sjuryinstructions on the charges, the defendant had sufficient notice that he could be convicted of both intentional and reckless 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 anotherfactorthatisrelevanttoreviewingcourtswhen 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(1stCir.)(‘‘summationisoneofvariousfactorsthat 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 wherethestate’stheoryattrialisnotclearuponreview of the other factors.12 Although closing arguments are one of several factors we examine in a theory of the caseanalysis,wealsorecognizethatclosingarguments areoftenambiguousandimpreciselyphrasedgiventhat most attorneys do not appear before the jury like an actor on the stage with every word, phrase, and inflectionmemorizedandexhaustivelyrehearsedinadvance.
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; improvisation 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 statement that the prosecutor made during closing argument. That statement, however, was ambiguously phrased in such a way that makes it difficult for us to draw any definite conclusions from the closing argumentregardingthestate’stheoryofthecase.Theprosecutor briefly touched on the two charges while addressing the jury during summation: ‘‘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 . . . you would look more to the assault [charge],recklessindifference.’’Itissomewhatambiguous as to what the prosecutor was actually attempting toconveytothejurywiththisstatement.Hadtheprosecutor 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 statementandthewitnesses’testimony,thedefendantcould 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 interpreted these remarks to conclude that the state had prosecuted 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 unintendedconsequenceofimproperlyrefocusingthetarget of its inquiry. The Appellate Court determined that the state’s failure to marshal the evidence in a particular mannerduringclosingargumentforthe juryamounted 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 statementmadetothejury.Thatstatementalone,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 defendant’sconvictionsonthebasisofoneunclearstatement 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 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

Outcome: In conclusion, when viewed in the context of the substitute information, the state’s evidence at trial, and hejuryinstructions,thedefendanthadsufficientnotice that he could be convicted of both reckless and intentional 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.

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