State v. Best

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STATE OF CONNECTICUT v. DURANTE BEST
(AC 38311)
Lavine, Mullins and Harper, Js.
Argued April 5—officially released October 4, 2016

(Appeal from Superior Court, judicial district of
Fairfield, Rodriguez, J.)
Neal Cone, senior assistant public defender, with
whom, on the brief, was Lauren Weisfeld, public
defender, for the appellant (defendant).
Susann E. Gill, supervisory assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, and Margaret E. Kelley, supervisory assistant
state’s attorney, for the appellee (state).
Opinion

HARPER, J. On the second day of evidence in his
criminal trial, the defendant, Durante Best, filed a writ-
ten request for a jury instruction of self-defense.1 The
trial court denied his request. Following the trial, he
was convicted of one count of murder in violation of
General Statutes § 53a-54a (a), two counts of attempt
to commit murder in violation of General Statutes
§§ 53a-49 and 53a-54a (a), two counts of assault in the
first degree in violation of General Statutes § 53a-59 (a)
(1), and criminal possession of a firearm in violation
of General Statutes § 53a-217 (a). On appeal, he claims
that the court improperly failed to instruct the jury on
self-defense, and, therefore, that he was deprived of his
constitutional right to establish a defense. We agree
that he was entitled to an instruction of self-defense
with respect to some, but not all, of the crimes of which
he was convicted. Accordingly, we reverse in part and
affirm in part the judgment of the trial court.2
‘‘In determining whether the defendant is entitled to
an instruction of self-defense . . . we must view the
evidence most favorably to giving such an instruction.’’
(Internal quotation marks omitted.) State v. Terwilliger,
294 Conn. 399, 408–409, 984 A.2d 721 (2009). Viewed
in this light, the record reveals the following relevant
facts, which the jury reasonably could have found. In
May, 2006, the defendant was living in an apartment
at 275 Jefferson Street in Bridgeport. He shared this
apartment with his then girlfriend, Erika Anderson
(Erika), and his stepbrother, Joseph Myers. On the after-
noon of May 4, 2006, Erika had planned to attend a
carnival at nearby Newfield Park with her daughter,
Octavia Anderson (Octavia); Octavia’s friend, Rog-
erlyna Jones; and Octavia’s young son, Taki. Before
Octavia arrived at the apartment, Erika and the defen-
dant began to argue.
When Octavia and Jones arrived at 275 Jefferson
Street, Octavia asked Jones to go to the door of the
apartment to get Erika because she was preoccupied
watching Taki, who was asleep. Jones knocked on the
door, but nobody answered. Jones then returned to the
car and informed Octavia that nobody answered, which
surprised Octavia because she had spoken with Erika
recently. Subsequently, Nelson Stroud, who was living
in the basement area of 275 Jefferson Street at the
time, informed Jones that the defendant and Erika were
arguing in their apartment. Octavia asked Myers, who
was sitting outside of the apartment, to watch Taki
while she and Jones went to retrieve Erika. Without
receiving permission from any of the occupants,
Octavia and Jones entered the apartment.
Once they had entered the apartment, Octavia and
Jones could hear the defendant and Erika arguing in
their bedroom. Concerned for her mother, Octavia
began banging on the door and ‘‘told them to open up
the f-ing door.’’ Octavia banged on the bedroom door
with a large plastic wrap holder several times and
screamed at the defendant to open the door, but he did
not comply. Instead, the defendant instructed her to
‘‘get the f-away from my door.’’ Octavia continued to
pound on the door and warned the defendant that ‘‘if
you don’t open the door [I’m] going to f-you up.’’ Jones,
who was also pounding on the door, ordered the defen-
dant to open the door and also stated that she and
Octavia had backup. Octavia admitted at trial that she
and Jones uttered these warnings to the defendant
clearly.
Having failed to convince the defendant to open the
door, Octavia turned away from the bedroom door and
searched for something to hit it with. At that moment,
the door was opened, and the defendant opened fire.
Jones was shot first. Just after Jones was shot, Octavia
felt a burning in her chest and realized that she had
been shot as well. Octavia and Jones ran back to Octav-
ia’s car, and Octavia drove them to nearby Bridgeport
Hospital. Jones lost a substantial amount of blood dur-
ing the car ride.
As Octavia and Jones were heading toward Octavia’s
car, Erika ran toward them. The defendant shot Erika,
who eventually collapsed outside of the apartment. The
defendant tried to take her to a hospital on his bike,
but was unable to do so and fled. Emergency response
personnel subsequently arrived and found Erika bleed-
ing profusely. She was taken to Bridgeport Hospital
where she was treated for several weeks. Jones died
of her injuries. Erika and Octavia both survived, but
sustained substantial injuries.
In an amended information dated June 6, 2007, the
state charged the defendant with one count of murder
as to Jones (count one); one count of attempted murder
as to Erika and one count of attempted murder as to
Octavia (counts two and three); one count of assault
in the first degree as to Erika and one count of assault
in the first degree as to Octavia (counts four and five);
and criminal possession of a firearm (count six).
Evidence in the defendant’s criminal trial began on
September 5, 2007. On that day, the court stated on the
record that it had received the state’s written request
to charge. The court also stated that it had granted the
defendant a one day extension to submit his request.
The following day, the defendant submitted his written
request to charge, which contained a proposed charge
of self-defense. The defendant stated that the eviden-
tiary basis for this request was ‘‘[t]estimony from the
alleged victims, [Erika and Octavia].’’ At the time this
written request was submitted, neither Erika nor
Octavia had testified. Immediately after the defendant
filed his request, however, the state called Octavia and
then Erika to testify.
The state also called Stroud and Tawana Myers
(Tawana) to testify. Stroud was in his basement apart-
ment at 275 Jefferson Street when he heard the defen-
dant begin to argue with Erika. He testified that he
heard Erika state that she wanted to leave, and he heard
her plead with the defendant to stop hitting her. He
also testified that he left his apartment on foot fifteen
minutes after the argument began. As he was walking
down Jefferson Street toward Central Avenue, he heard
four gunshots from the apartment. Stroud turned and
observed Octavia and Jones run from the house, enter
their car, and drive off. He did not see Erika leave
the house.
Tawana, the wife of Joseph Myers, was outside of
275 Jefferson Street on May 4, 2006. She testified that
she heard the defendant and Erika arguing, and
observed Octavia and Jones enter the house. She then
heard argument followed by a ‘‘big boom,’’ which she
concluded was Octavia and Jones kicking in the door
to the defendant’s bedroom. Subsequently, she heard
three or four gunshots fired in quick succession, and
then observed Octavia and Jones flee from the house
and drive off. Tawana observed Erika come out of the
house after Octavia and Jones; she was bleeding badly
from her chest and collapsed on the front porch as soon
as she exited the house. After the defendant exited the
house, Tawana did not hear any additional gunshots.
The state rested on September 10, 2007, and the
defendant did not call any witnesses. The court then
notified the parties that it would address the jury charge
after the lunch recess. In addition, the court inquired
whether the parties intended to file supplemental
requests to charge. The state declined, and defense
counsel indicated that he would review what he pre-
viously had submitted and make a decision after lunch.
That afternoon, the court held a charge conference
in chambers. At the conclusion of this conference, the
court stated on the record that it had discussed ‘‘all of
the issues relating to the charge’’ with the parties and
invited the parties to comment on the record. The state
acknowledged that a charge conference occurred and
offered no further comment. Defense counsel likewise
acknowledged that a charge conference was held in
chambers, but also took exception to the court’s deci-
sion not to give a self-defense charge. The court noted
the exception and offered the parties an opportunity
to comment further. When both parties declined, the
jury returned to the courtroom for the charge. The court
did not give an instruction on self-defense . Thereafter,
the jury found the defendant guilty of all charges.
On appeal, the defendant claims that the court
improperly failed to give the jury an instruction of self-
defense. He argues that the evidence presented during
the trial supported such an instruction. Specifically, he
argues that Octavia’s statement to the defendant that
‘‘if you don’t open the door [I’m] going to f-you up,’’
coupled with Jones’ warning that the two ‘‘had backup’’
and the pounding on the door, provided an evidentiary
basis for the jury reasonably to conclude that the defen-
dant believed that Octavia and Jones were about to use
deadly force against him.
In response, the state argues that the defendant’s
written request to charge was insufficient for two rea-
sons. First, the state contends that the written request
lacked an evidentiary basis to support a charge of self-
defense. The state notes that the written request simply
stated that the testimony of two witnesses, namely,
Erika and Octavia, is the source of the evidence support-
ing the charge. In the state’s view, the written request
should have detailed the specific evidence that sup-
ported the defendant’s proposed jury instruction rather
than simply identifying the source of the evidence. Sec-
ond, the state argues that the written request contained
an incomplete and inaccurate statement of self-defense
principles.3 Specifically, the state claims that because
the defendant used deadly physical force against the
victims, the proposed jury instruction necessarily must
have contained, but did not contain, a discussion of the
use and limits of deadly physical force in defense of
self. Alternatively, the state claims that, even if the
defendant was entitled to an instruction of self-defense
as to Octavia and Jones, he was not entitled to such a
charge with respect to his conviction of attempted mur-
der and assault for his conduct against Erika. The state
relies on Erika’s testimony that after Octavia and Jones
were shot, she ran toward them and was shot by the
defendant near a tree in the yard. On the basis of this
testimony, the state claims that Erika was shot when
she was fleeing from the defendant and, therefore, that
there is no evidentiary basis to support a charge of self-
defense as to her.
Before we begin our analysis, we note that the state’s
primary position—that the defendant’s written request
to charge is insufficient—implicates the reviewability
of the defendant’s claim. The state acknowledges that
the failure to set forth a detailed factual basis for a
proposed charge is treated by the courts as a failure to
preserve that claim, but also argues that this failure
‘‘should disentitle a defendant to the charge.’’ Although
we find no support for the state’s latter proposition,
we will consider the issue of reviewability. As stated
previously, the defendant’s written request to charge
identifies ‘‘[t]estimony from the alleged victims, [Erika
and Octavia],’’ as the basis for the proposed instruction.
Our rules of practice set forth the steps necessary to
preserve a claim that a trial court improperly failed to
give a jury instruction. Practice Book § 42-16 provides
in relevant part: ‘‘An appellate court shall not be bound
to consider error as to the giving of, or the failure to
give, an instruction unless the matter is covered by a
written request to charge or exception has been taken
by the party appealing immediately after the charge
is delivered. Counsel taking the exception shall state
distinctly the matter objected to and the ground of
exception. The exception shall be taken out of the hear-
ing of the jury.’’ See also Lin v. National Railroad
Passenger Corp., 277 Conn. 1, 13, 889 A.2d 798 (2006).
Practice Book § 42-18 governs the form and content
of such requests. Practice Book § 42-18 provides that
written requests shall contain ‘‘a single proposition of
law clearly and concisely stated with the citation of
authority upon which it is based, and the evidence to
which the proposition would apply. . . .’’ (Emphasis
added.) This court previously has held that the require-
ments of Practice Book § 42-18 are satisfied ‘‘only if
the proposed request contains such a complete state-
ment of the essential facts as would have justified the
court in charging in the form requested.’’ (Internal quo-
tation marks omitted.) State v. Arreaga, 75 Conn. App.
521, 525, 816 A.2d 679 (2003).
In the present case, the defendant’s written request
does not state any essential facts or evidence, but
instead merely identifies two witnesses, Erika and
Octavia, whom the defendant claims would produce
that evidence via testimony. Although the court
required the parties to submit their proposed charges
before all of the evidence had been presented, it clearly
gave counsel the opportunity to supplement their pro-
posed charges after the evidence was submitted. The
defendant failed to take advantage of this opportunity.
Because the defendant’s request fails to set forth a
complete statement of essential facts justifying the pro-
posed charge, we agree with the state that it did not
comply with Practice Book § 42-18.4 Consequently, we
conclude that the defendant has failed to preserve his
claim for review.5
Nevertheless, the defendant argues that his claim is
reviewable under State v. Golding, 213 Conn. 233, 239–
40, 567 A.2d 823 (1989); see In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015) (modifying third condi-
tion of Golding). We agree. In his main brief, the defen-
dant has requested review of an unpreserved claim
pursuant to Golding, presented a record that is ade-
quate for our review, and has alleged a violation of a
fundamental constitutional right, namely, the right to
proper jury instructions on the elements of self-defense.
See State v. Elson, 311 Conn. 726, 755–56, 91 A.3d 862
(2014). Therefore, we will review the defendant’s unpre-
served constitutional claim.
Turning to the merits of the defendant’s claim, under
the remaining two prongs of Golding, the defendant
must show that the alleged constitutional violation
exists and deprived him of a fair trial, and that the state
has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. See
In re Yasiel R., supra, 317 Conn. 781. For the reasons
we now discuss, we conclude that both of these prongs
have been satisfied and, therefore, that the defendant
was entitled to an instruction on the elements of self-
defense as to his conduct toward Octavia and Jones,
but not as to his conduct toward Erika.
The following legal principles are relevant to our
analysis of the third prong of Golding. ‘‘[T]he fair oppor-
tunity to establish a defense is a fundamental element
of due process of law . . . . This fundamental consti-
tutional right includes proper jury instructions on the
elements of self-defense so that the jury may ascertain
whether the state has met its burden of proving beyond
a reasonable doubt that the assault was not justified.
. . . Thus, [i]f the defendant asserts [self-defense] and
the evidence indicates the availability of that defense,
such a charge is obligatory and the defendant is entitled,
as a matter of law, to [an] . . . instruction [on self-
defense]. . . . Before an instruction is warranted, how-
ever, [a] defendant bears the initial burden of producing
sufficient evidence to inject self-defense into the case.
. . . To meet that burden, the evidence adduced at trial,
whether by the state or the defense, must be sufficient
[if credited by the jury] to raise a reasonable doubt in
the mind of a rational juror as to whether the defendant
acted in self-defense. . . . This burden is slight, how-
ever, and may be satisfied if there is any foundation in
the evidence [for the defendant’s claim], no matter how
weak or incredible . . . .’’ (Citations omitted; internal
quotation marks omitted.) State v. Edwards, 234 Conn.
381, 388, 661 A.2d 1037 (1995).
Adopting the version of Erika and Octavia’s testimony
most favorable to the defendant, we conclude that the
evidence presented to the jury was sufficient to raise
the question of whether the defendant acted in self-
defense. To begin with, Octavia admitted that neither
she nor Jones had received permission from any occu-
pant to enter the defendant’s apartment. Once inside,
Octavia began pounding on the door to the defendant’s
bedroom with an object and shouting orders to him,
such as ‘‘open up the f-ing door.’’ When the defendant
did not comply, Octavia and Jones threatened the defen-
dant, stating that if he did not open the door, they
would ‘‘f-you up.’’ Thus, the defendant was faced with
intruders in his home who were pounding on his door
and leveling threats, which Octavia admitted were lev-
eled clearly for the defendant to hear. Additionally,
the defendant was faced with an unknown number of
intruders, as Jones warned the defendant, while pound-
ing on his bedroom door, that she and Octavia ‘‘had
backup.’’ At oral argument before this court, the state
conceded that the statements made by Octavia and/or
Jones could have been construed as threats. Because
this evidence, if believed, may have been sufficient to
have raised a question in the mind of a rational juror
as to whether the defendant had shot Octavia and Jones
in self-defense, he was entitled to a jury determination
of his claim. The trial court, therefore, improperly
rejected the defendant’s request for an instruction on
self-defense as to his crimes toward Octavia and Jones.
With regard to the fourth prong of Golding, we note
simply that the state has not argued that the court’s
failure to provide an instruction was harmless beyond
a reasonable doubt. Thus, the state has failed to meet its
burden to demonstrate that such an error was harmless.
Having concluded that the defendant was entitled to
an instruction as to Octavia and Jones, we turn to the
state’s contention that he was not entitled to an instruc-
tion as to counts two and four of the information, charg-
ing the defendant with attempted murder and assault
in the first degree, respectively, for his conduct toward
Erika. We agree with the state.
The following additional facts are relevant to this
issue. Erika testified during trial. On direct examination,
she testified that after Octavia and Jones were shot,
she went toward them and was shot by the defendant
near a tree in the yard. On cross-examination, defense
counsel asked Erika a series of questions about what
occurred in the bedroom. For example, defense counsel
asked Erika if she went for a gun when the two were
arguing. She answered no. Defense counsel then asked
Erika if she wrestled with the defendant over the gun,
and if the gun went off accidentally as they were fighting
to control it. She answered no to both questions. She
also denied even reaching for the gun. Defense counsel
also asked Erika if she had a box cutter on her keychain,
which she admitted. When defense counsel asked if
she went after the defendant with the box cutter, she
denied it.
The state relies on Erika’s prior testimony that she
was shot outside and contends that she was fleeing
when the defendant assaulted her. The defendant points
out that Tawana’s testimony that all gunshots were fired
in the house in quick succession contradicts Erika’s
account. Regardless of where Erika was shot, we con-
clude that there is no evidence in the record to justify
a self-defense charge as to her. None of the evidence
adduced at trial indicates that Erika posed a threat to
the defendant. Erika denied each question posed which
might have suggested that she exhibited threatening
behavior, such as whether she threatened the defendant
with a box cutter or tussled with the defendant for the
gun. Although there is no dispute that the defendant
and Erika were arguing, there is no evidence that Erika
harmed or threatened to harm the defendant during the
course of this argument. In the absence of any such
evidence, we conclude that, on remand, the defendant
is not entitled to a jury instruction of self-defense for
his conduct toward Erika.
The judgment is reversed only as to counts one, three,
and five of the amended information and the case is
remanded for a new trial on those counts; the judgment
is affirmed in all other respects.
In this opinion the other judges concurred.
1
General Statutes § 53a-19 (a) provides in relevant part: ‘‘[A] person is
justified in using reasonable physical force upon another person to defend
himself or a third person from what he reasonably believes to be the use
or imminent use of physical force, and he may use such degree of force
which he reasonably believes to be necessary for such purpose; except that
deadly physical force may not be used unless the actor reasonably believes
that such other person is (1) using or about to use deadly physical force,
or (2) inflicting or about to inflict great bodily harm.’’
2
We note at the outset that ‘‘[u]nder General Statutes § 53a-19 (a) . . .
a claim of self-defense may be invoked only to justify the actor’s use of
reasonable physical force. Self-defense does not apply if a defendant’s use
of force is not in issue.’’ (Emphasis in original.) State v. Bailey, 209 Conn.
322, 348, 551 A.2d 1206 (1988). Because the use of force is not an issue in
a prosecution for criminal possession of a firearm pursuant to § 53a-217
(a), the defendant is not entitled to an instruction of self-defense as to his
conviction of criminal possession of a firearm. See id. (holding self-defense
inapplicable to crime of carrying a pistol without a permit pursuant to
General Statutes § 29-35). Accordingly, we affirm the judgment as to count
six of the state’s amended information charging the defendant with criminal
possession of a firearm.
3
The legal principles set forth in the defendant’s written request to charge
were as follows: ‘‘The defendant claims that his use of force was justified
as self-defense. This requires that I state to you the applicable rules of law
on the use of force in self-defense. Self-defense is a legal defense to the use
of force which would otherwise be criminal. This does not mean, however,
that the defendant must prove the defense of self-defense. The burden to
prove guilt beyond a reasonable doubt remains on the state, which means
that the state must disprove the defense beyond a reasonable doubt.
‘‘A person is justified in using reasonable physical force upon another
person to defend himself from what he reasonably believes to be the immi-
nent use of physical force, and he may use such degree of force which he
reasonably believes to be necessary for that purpose. However, a person is
not justified in using physical force self-defense when, with intent to cause
physical injury to another person, he provokes the use of physical force by
that other person; nor is a person justified in using physical force in self-
defense when he is the initial aggressor.
‘‘First of all, the defendant must actually believe that he is faced with the
imminent use of physical force upon him. He must in fact have such a belief.
‘‘Second, that belief must be reasonable. A reasonable belief is one that
a reasonably prudent person, viewing the situation from the defendant’s
perspective, and in the same circumstances as the defendant was in, would
have. It is not an irrational belief, nor is it a belief that is not justified by
all the circumstances existing then and there. Nor is it necessarily the belief
that the defendant in fact had; it is a belief that was reasonable, from the
perspective of a reasonable person in the defendant’s circumstances.
‘‘Third, acting with that reasonable belief, the amount and degree of force
that he uses must be reasonable. It must be that degree of force that a
reasonable person, in the same circumstances, viewed from the perspective
of the defendant, would use, and no more. If the degree of force used is
excessive or unreasonable in view of all the circumstances, the defendant
is not entitled to the defense of self-defense.
‘‘Finally, a person is not justified in using physical force if, intending to
cause physical injury to the other person, he provokes the use of physical
force by that other person he is the initial aggressor. The initial aggressor
may not necessarily be the person who first used physical force. The initial
aggressor may be the first person who threatened to use physical force.
‘‘Whether the defendant had the requisite belief, whether the defendant’s
belief was reasonable, whether the degree of force he used was reasonable,
and whether he provoked the use of physical force, are questions of fact
for you to determine from the evidence.’’
4
The state also contends that the defendant’s written request to charge
is inadequate because it fails to set forth a complete and accurate statement
of the legal principles of self-defense. Because we conclude that the defen-
dant’s written request is inadequate for its failure to state a proper evidentiary
basis, we need not address this additional contention. Accordingly, we offer
no opinion concerning whether the defendant should have differentiated
deadly force because it is irrelevant to our analysis.
5
Although the defendant failed to submit an adequate written request,
we note that he did take exception to the court’s refusal to charge the jury
on self-defense. The defendant’s exception, like his written request to charge,
did not conform to our rules of practice. Practice Book § 42-16 provides in
relevant part that ‘‘[c]ounsel taking the exception shall state distinctly the
matter objected to and the ground of exception. . . .’’ (Emphasis added.)
‘‘The requirement that the claim made by the exception be raised distinctly
means that it must be so stated as to bring to the attention of the court the
precise matter on which its decision is being asked.’’ (Internal quotation
marks omitted.) State v. Wright, 62 Conn. App. 743, 755, 774 A.2d 1015
(2001), cert. denied, 256 Conn. 919, 774 A.2d 142 (2001).
In the present case, defense counsel failed to state the ground of his
exception on the record, but merely stated that he took exception to the
court’s failure to give an instruction on self-defense. Our rules of practice
require defendants to state distinctly both the matter objected to and the
ground of such an exception. Although the defendant stated distinctly that
he was objecting to the failure to give a self-defense instruction, he did not
set forth any grounds supporting this exception.