Date: 08-16-2016

Case Style: STATE OF CONNECTICUT v. DEVONTE WEST

Case Number: AC 37676

Judge: Douglas S. Lavine

Court: Connecticut Appellate Court

Plaintiff's Attorney:

Laurie N. Feldman
Office of the Chief State's Attorney - Appellate Bureau

Defendant's Attorney:

Daniel J Kirsh

Description: The defendant, Devonte West, appeals from the judgment of conviction, rendered after a jury trial, on one count of assault on a public safety officer in violation of General Statutes § 53a-167c (a) (5), one count of interfering with an officer in violation of General Statutes § 53a-167a, and one count of breach of the peace in the second degree in violation of General Statutes § 53a-181 (a) (1). On appeal, the defendant claims that the trial court erred when it (1) failed to chargethejuryonthequalityofthepoliceinvestigation, and (2) implied at sentencing that it was penalizing the defendant for asserting his constitutional right to stand trial. We disagree and, therefore, affirm the judgment of the court. The jury reasonably could have found the following facts. On June 16, 2013, at approximately 10:30 p.m., John Michaud, an officer of the New London Police Department (department), responded to a harassment callthatdidnotimplicatethedefendant.Thecomplainant claimed that her father, Kenneth Hack, who lived at 57 Jay Street, sent her harassing text messages and phone calls. Michaud requested police assistance and wentto57JayStreet,athirdfloorresidenceinaduplex. The front door opened into a vestibule that separated the front door from a locked interior door. In response to Michaud’s request, Deena Knott, JeremyZelinski,andBrianGriffin,allofficersofthedepartment, arrived at the scene. All four officers were wearing their police issued uniforms. Michaud and Knott opened the front door but could not open the interior door. Through the window of the interior door, Michaud couldsee thedefendant. Michaudknocked on the window, but before he could announce why he was there, the defendant profanely stated that he was not goingtolettheofficersinsidethebuildingbecausethey did not have a warrant. One of the officers stated that theywerenotthereforthedefendant,butthedefendant refused to open the interior door and walked away. When the officer again told the defendant that they were not there to speak with him, the defendant again yelledobscenitiesattheofficersandtoldthemtoleave. Hack soon left the apartment, was arrested, and was placed in a police cruiser. At this point, Robert Pickett, a detective sergeant in the department, arrived. While Hack was being arrested, the defendant stood on the front step of the residence, continuing to yell obscenities at the officers. As the police officers prepared to leave, a minivan sped onto Jay Street and stopped in the middle of the road alongside the police cruisers. The defendant’s mother, Henrietta Adger, exited the front passenger seat and ran to the cruiser Hack was sitting in, asking why the police had arrested her son. She realized that the defendant was not in the cruiser,
but she told the officers that they had no business being on her property. When Michaud began to issue theoperatorofthevanamotorvehicleviolation,Adger becameirateandyelledobscenitiesattheofficers.Pickett and Griffin struggled with Adger to take her into custody. While Adger was being arrested, the defendant continued to yell and scream obscenities from the front steps. At one point, he went down the stairs while shouting at the officers. Michaud and Zelinski, who thought that the defendant was going to interfere with the arrest, approached him. The defendant retreated up thestairs. Michaudstood atthe bottom ofthe stairs, whilethedefendantshoutedatMichaudtostopbeating his mother. The defendant also entreated Michaud to shoothim.Atonepoint,Michaudthoughtthatthedefendant was going to charge down the stairs toward him. Knott came over next to Michaud and told the defendanttogobackintotheapartment.Thedefendantcame halfway down the stairs and spat on or toward Knott.1 The defendant then ran up the stairs into the vestibule and shut the front door behind him. One of the officers kicked in the front door. When the officers attempted to arrest him, the defendant fought back by flailing his arms and kicking his legs. The officers struggled to arrestthedefendant.Whentheywereonthefrontlawn, the defendant failed to respond to a Taser warning. Pickettthentaseredthedefendant.Theofficerseventuallywereabletosubduethedefendantandtakehiminto custody.Hewaschargedwithtwocountsofassaultinga public safety officer, one count of interfering with an officer, and one count of breach of the peace in the second degree. At trial, the state presented its evidence through four of the five officers who were present at the scene. On cross-examination,defensecounselhighlightednumerous alleged deficiencies in the police investigation. The defendant called five witnesses, including an expert witness, Bryce Linskey, who testified that the police investigation of the defendant’s arrest was not consistent with good police practice. Linskey also testified that it was possible that the defendant had no intent to kick and flail, but did so because he was tasered. In addition, the defendant testified that he had had prior negative experiences with the police.2 He, however, admitted that he spat at Knott. The jury found the defendant guilty of three of the four charges, acquitting him of one count of assaulting a public safety officer. On December 5, 2014, the court sentenced the defendant to three years incarceration, execution suspended after nine months, and two years ofprobation.Thisappealfollowed.Additionalfactsand procedural history will be set forth as necessary to address the defendant’s claims.
I The defendant first claims that the court improperly declined to charge the jury on the quality of the police investigation. The defendant argues that he presented evidencecallingtheadequacyofthepoliceinvestigation into question in an effort to create reasonable doubt as to his guilt. The defendant argues that, as a matter of law, he was entitled to a jury charge regarding the adequacy of the police investigation. We disagree. The following additional facts are relevant to this claim. The defendant submitted a request to charge pertaining to the adequacy of the police investigation, but the court denied defense counsel’s request.3 The court stated that, even though defense counsel had focused on thealleged inadequacy of thepolice investigation throughout the trial, it did not have a duty to chargethejuryonwhetheraninadequatepoliceinvestigationcould giveriseto reasonabledoubt.It notedthat this was particularly true because none of the state’s witnesses were police informants or alleged accomplices.Thecourtinstructedthejuryonwitnesscredibility, which included an instruction on how to assess police officer testimony. It also instructed the jury that it was the state’s burden to prove the defendant’s guilt beyond a reasonable doubt.4 The defendant argues on appeal that, through crossexaminationof thestate’switnessesand throughdirect examination of his own witnesses, he produced sufficient evidence from which the jury could find that the police investigation was not thorough. He argues that because the investigation was inadequate, it could give rise to reasonable doubt of his guilt and, therefore, despite the fact that reasonable doubt is not a legally recognizeddefense,thecourtwasobligated,asamatter of law, to instruct the jury as to the defendant’s theory ofdefense.Thedefendantassertsthatthecourt’sfailure to do so infringed on his constitutional right to due process. We set forth the applicable standard of review and thelegalprinciplesrelevanttothisclaim.‘‘Ourstandard ofreviewincasesinwhichthedefendantclaimsthatthe instructionswereconstitutionallydeficientiswhetherit is reasonably possible that the instructions misled the jury. . . . In assessing the claim, the jury charge must be read as a whole, not in artificial isolation from the overall charge. . . . The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . . . .’’ (Internal quotation marks omitted.) State v. Wright, 149 Conn. App. 758, 772, 89 A.3d 458, cert. denied, 312 Conn. 917, 94 A.3d 641 (2014). ‘‘[T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in
such a way that injustice is not done to either party under the established rules of law. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not viewthe instructionsas improper.’’(Internal quotation marks omitted.) State v. Cales, 95 Conn. App. 533, 535–36, 897 A.2d 657 (2006). Thedefendant’sclaimiscontrolledbyStatev.Wright, supra, 149 Conn. App. 770–74.5 His claim fails because, as the court stated in Wright, it conflates ‘‘the concept of [beyond a] reasonable doubt’’ with a legal defense. Id., 772. ‘‘[T]he concept of reasonable doubt is not a recognized defense to a crime . . . but a standard by which the state must prove its case. . . . The [reasonable doubt concept] provides concrete substance for thepresumptionofinnocence—thatbedrockaxiomatic andelementaryprinciplewhoseenforcementliesatthe foundation of the administration of our criminal law.’’ (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 772–73. In the present case, the defendant relies on the same rationale as did the defendant in Wright, which this court rejected, stating: ‘‘The defendant does not challenge any segment of the court’s charge on reasonable doubt. He argues that the court erred by not including a charge instructing the jury that it was permitted to consider the quality of the police investigation in determining whether the state proved its case beyond a reasonable doubt . . . [but] the defendant was allowed to elicit testimony from witnesses to suggest that there were deficiencies in the police investigation and was allowed to argue this theory in closing argument.’’ (Citation omitted.) Id., 773–74. Additionally, as in Wright, the trial court in the present case properly instructed the jury that the state must prove the defendant’s guilt beyond a reasonable doubt. Id., 774. The defendant was not deprived the right to a fair trial because he was given the opportunity to present evidence and cross-examine the state’s witnesses regarding the adequacy of the police investigation. See alsoid.Weconcludethatthejurywasnotmisledbythe instructionsgiven,andthedefendantwasnotentitledto a charge on the quality of the police investigation. II The defendant’s next claim is that at sentencing, the trialcourtimproperlyimpliedthatitwaspenalizinghim for asserting his right to stand trial. We disagree.6 The following additional facts are relevant to this claim.Duringsentencing,thedefendantinterruptedthe trial court and made a last minute request to represent himself. The trial court rejected his request because it wasbroughtat‘‘theeleventhhour,’’andtherewasnothing in the record ‘‘that would lead [the] court to believe that[defensecounsel][had]notengagedin[competent]
andeffectiverepresentation.’’Thecourtnotedthat‘‘the fact that [the defendant] may not like the results [of the trial] is a different story.’’ The trial court also noted that ‘‘the clerk approached [the trial court] and indicated [that the defendant] was rather insistent on filing an application for waiver and appeal paperwork and, notwithstanding the fact that they tried to tell him numerous times, there is nothing to appeal and . . . nothingyoucanfile,sir,untilafterthesentence.’’Before the trial court could finish explaining why the defendant’s appeal papers could not be filed at that time, the defendant interrupted the trial court, stating, ‘‘[w]ell, a lot of my rights have,’’ and the trial court interjected, stating, ‘‘Mr. West, whoa, I’m talking now.’’ Thetrialcourtaskedthedefendantwhetherhewould liketospeakbeforethecourtsentencedhim.Thedefendant stated that he did not want to address the court. Thetrialcourtindicatedthatithadreviewedthepresentence investigation report and a medical evaluation of thedefendant.Then,thetrialcourtaddressedthedefendant as follows: ‘‘The Court: And I just want to say, you know, Mr. West,Ithinkyourattitudeheretodayfranklysaysmost ofwhatthiscaseisabout.Youknow,you’redisrespectful to your attorney, you’re upset with your— ‘‘The Defendant: No I wasn’t. ‘‘The Court: Mr. West, see, again, my turn now. . . . I just gave you an opportunity to speak, you said no. . . that’s the second time you’ve interrupted me. . . . ‘‘[T]he way [the presentence investigation report] comes across . . . I’m thinking, the young man’s got it, hit a home run, understands it, he just made a boneheaded move. And then I turn over to page two where, again, what the substance and sum of what happened here tonight is all about. You proceed to blame everything else in the world for what happened. I quote, ‘I was accused of things and charged with things that are nottrue. Connecticutlawofficers tookanoath andlied under oath. Now is that fair? I do not believe I had a fair case because of the color of my skin.’ . . . ‘‘You admitted to cursing them out. You . . . admitted to going out the door and attempting to interfere withthemwhiletheyweretryingtoarrestyourmother. Who somehow—again, you’re gonna try to interrupt me— ‘‘The Defendant: No. I wasn’t. ‘‘The Court: . . . And you admitted to spitting at Officer Knott. You didn’t deny that it hit her, or you admitted you spit at her. . . . [A]t a minimum, you admit to the breach, you admit to the interfering, and you admit at a minimum to attempting to assault a police officer by doing something as vile as spitting on them. . . .
‘‘The Defendant: Can I talk? ‘‘The Court: No. You had your chance. It is my turn now. So you stand—and even now you stand here before me and I can see your attitude. . . . I believe, in this case, that a jail sentence is appropriate because standingbeforemerightnow,afteryougotonthestand andtestifiedinfrontofmethatyoubreachedthepeace, interfered with police, and spit at a police officer, that you still stand here and believe that you didn’t do anythingwrongandthatthisentirecaseandcircumstances are other people’s fault because of the color of your skin, and that the police got on the stand and lied. ‘‘Those are your words, not mine. . . . If you had showed me that you accepted responsibility in full for what you did that day, you would walk out of here without a prison sentence, but because you can’t do that, even now, with a good, qualified attorney who I know told you what you need to do to come in here and say, you’re going to go to prison. And, hopefully, you’ll learn the lesson that you can’t poke the dog, right?’’ Thereafter, the trial court sentenced the defendant to three years incarceration, execution suspended after nine months, and two years of probation. The defendant claims that the trial court erred by implying that it was penalizing the defendant for asserting his constitutional right to stand trial. The defendant argues that the ‘‘trial court’s remarks . . . created the appearance of impropriety’’; State v. Elson, 311 Conn. 726, 784, 91 A.3d 862 (2014); in that it ‘‘create[d] the perception . . . that the defendant’s sentence was a penalty for his choice to stand trial and his continued assertion of his innocence.’’ (Citation omitted; internal quotation marks omitted.) We see no such implication in the trial court’s remarks, nor do we discern any appearance of impropriety. We set forth the applicable standard of review and legal principles in this case. ‘‘[A] trial court possesses, within statutorily prescribed limits, broad discretion in sentencing matters. On appeal, we will disturb a trial court’s sentencing decision only if that discretion clearly has been abused. . . . ‘‘In spite of that discretion, however, the [a]ugmentation of [a] sentence based on a defendant’s decision to stand on [his or her] right to put the Government to its proof rather than plead guilty is clearly improper.’’ (Citation omitted; internal quotation marks omitted.) State v. Kelly, 256 Conn. 23, 80–81, 770 A.2d 908 (2001). A trial court ‘‘must [therefore] carefully avoid any suggestions in its comments at the sentencing stage that it was taking into account the fact [that the] defendant had not pleaded guilty but had put the prosecution on its proof.’’ (Internal quotation marks omitted.) State v. Elson, supra, 311 Conn. 783. Accordingly, ‘‘a trial judge shouldnotcommentnegativelyonthedefendant’sdeci
sionto electatrial duringsentencing,given theappearance of impropriety of that consideration.’’ Id., 777. However, ‘‘[a] defendant’s demeanor, criminal history, presentence investigation report, prospect for rehabilitationandgenerallackofremorseforthecrimes of which he has been convicted remain legitimate sentencing considerations. . . . [A] sentencing court is not preclude[d] . . . from finding a lack of remorse based on facts other than the defendant’s failure to plead guilty . . . .’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 782–83. ‘‘Such information may come to the judge’s attention from evidence adduced at the . . . trial itself, from a . . . presentence investigation . . . or possibly from other sources. . . . Thus, evidence adduced at trial detailing the nature and extent of the offenses charged, as well as the defendant’s conduct during the trial . . . are among the considerations that the sentencing court may take into account . . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Coleman, 242 Conn. 523, 544, 700 A.2d 14 (1997). The facts in Elson are clearly distinguishable from thoseinthepresentcase.UnlikethetrialcourtinElson, which stated that the defendant ‘‘wouldn’t have put the victim through the trial’’ if he were truly apologetic for his actions; (emphasis omitted; internal quotation marks omitted) State v. Elson, supra, 311 Conn. 733; the trial court in the present case did not make any statementsconcerningthedefendant’selectiontostand trial. Rather, the trial court focused on the defendant’s negative attitude and conduct during the presentation of evidence and at sentencing. The court also acknowledged the defendant’s general lack of remorse for his conductunderlyingtheoffenses,notingthatthepresentence investigation report indicated that the defendant ‘‘blame[d] everybody else in the world for what happened.’’

Outcome:

Because the Supreme Court in Elson ‘‘[did] not in any way intimate that trial courts are precluded from consideringor discussingatsentencing thedefendant’s conduct [or general lack of remorse] during the trial andsentencingproceedings’’;id.,781–82;thetrialcourt here properly considered the defendant’s behavior and lack of remorse when it addressed him at sentencing. Accordingly, we conclude that the trial court did not imply that it was penalizing the defendant for asserting his constitutional right to stand trial. The judgment is affirmed.

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