State v. Daniels ( 2022 )

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STATE OF CONNECTICUT v. PATRICIA DANIELS
(SC 20376)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker and Keller, Js.
Syllabus
A jury found the defendant guilty of intentional manslaughter in the first
degree, reckless manslaughter in the first degree, and misconduct with
a motor vehicle, among other crimes. The defendant had been driving
her vehicle at a high rate of speed when she struck the driver’s side of
the victim’s vehicle. The defendant then ran her vehicle into the victim’s
vehicle from behind, causing the victim’s vehicle to strike a tree, which
resulted in the victim’s death. At the defendant’s sentencing hearing,
the state moved to vacate the defendant’s intentional manslaughter
conviction, citing to State v. Polanco (308 Conn. 242) and its progeny,
in which this court held that the proper remedy for a double jeopardy
violation arising out of cumulative convictions is to vacate one of the
convictions rather than merging them. The trial court granted the state’s
motion and vacated the intentional manslaughter conviction for sentenc-
ing purposes. The defendant appealed from the judgment of conviction
to the Appellate Court, claiming, inter alia, that the jury’s verdict of
guilty of intentional manslaughter, reckless manslaughter, and miscon-
duct with a motor vehicle, the latter of which involves the criminally
negligent operation of a motor vehicle that causes the death of another
person, was legally inconsistent because each of those crimes requires
proof of a mutually exclusive mental state. The Appellate Court deter-
mined that neither reckless manslaughter nor misconduct with a motor
vehicle was inconsistent with intentional manslaughter but agreed that
the defendant’s conviction of reckless manslaughter and misconduct
with a motor vehicle was legally inconsistent insofar as the defendant
could not have consciously disregarded the risk of the victim’s death
while simultaneously failing to perceive that same risk of death. The
Appellate Court rejected the state’s argument that the proper remedy
for the legal inconsistency was to remand the case with direction to
reinstate the defendant’s intentional manslaughter conviction and,
instead, reversed the judgment of the trial court in part, vacated the
defendant’s conviction of reckless manslaughter and misconduct with
a motor vehicle, and ordered a new trial as to those counts and the
intentional manslaughter count. The state, on the granting of certifica-
tion, appealed to this court. Held:
1. The Appellate Court improperly ordered a new trial on the intentional
manslaughter, reckless manslaughter, and misconduct with a motor
vehicle counts instead of reinstating the defendant’s intentional man-
slaughter conviction and resentencing the defendant: although the state
did not dispute that the defendant’s conviction of reckless manslaughter
and misconduct with a motor vehicle was inherently inconsistent and,
therefore, was properly vacated by the Appellate Court, this court had
clarified in Polanco and its progeny that the adoption of vacatur as the
appropriate remedy for cumulative convictions did not preclude the
reinstatement of a defendant’s vacated conviction if it was vacated to
avoid a double jeopardy violation and was not affected by the legal
inconsistency that necessitated the reversal of the controlling offense
or offenses of which the defendant had been convicted; in the present
case, the defendant’s intentional manslaughter conviction was vacated
for the purpose of avoiding a double jeopardy violation, as a review of
the record demonstrated that, at the defendant’s sentencing hearing,
the prosecutor specifically cited to case law concerning vacatur that
was developed and applied in the context of double jeopardy violations
and indicated that the vacatur request was consistent with the state’s
theory at trial that the two strikes to the victim’s vehicle arose from a
single act that was either intentional or reckless, and the prosecutor
was apparently under the belief that vacating one of the manslaughter
counts was necessary to avoid the imposition of cumulative punish-
ments; moreover, the vacated intentional manslaughter conviction was
not affected by the legal inconsistency that necessitated the vacating
on appeal of the defendant’s conviction of reckless manslaughter and
misconduct with a motor vehicle, namely, the impossibility of con-
sciously disregarding the risk of the victim’s death while simultaneously
failing to perceive that same risk of death, because the crime of inten-
tional manslaughter requires the jury to find only that the defendant
intended to cause serious physical injury to another person and that
she caused the death of such person or of a third person, not that she
had a specific mental state with respect to creating a risk of death;
accordingly, because the defendant’s intentional manslaughter convic-
tion was not tainted by the inconsistency in the jury’s verdict and was
vacated to avoid a potential double jeopardy violation, this court
reversed the judgment of the Appellate Court as to the remedy for the
jury’s inconsistent verdict only, upholding the Appellate Court’s vacating
of the defendant’s conviction of reckless manslaughter and misconduct
with a motor vehicle but remanding the case with direction to reinstate
the defendant’s intentional manslaughter conviction, to sentence the
defendant on that count, and to resentence her on her conviction of
two other counts unrelated to the counts of manslaughter and miscon-
duct with a motor vehicle.
2. The defendant could not prevail on her claim that the judgment of the
Appellate Court should be affirmed on the alternative ground that that
court incorrectly had concluded that her intentional manslaughter con-
viction was not inconsistent with her conviction of reckless manslaugh-
ter and misconduct with a motor vehicle:
a. The defendant’s conviction of intentional manslaughter and reckless
manslaughter was not legally inconsistent: the crime of intentional man-
slaughter requires only that the defendant had the intent to cause serious
physical injury to a person and caused the death of such person or of
a third person, whereas the elements of reckless manslaughter include
the requirement that the defendant recklessly engaged in conduct that
created a grave risk of death to another person, and, therefore, the
mental state requirements for the two offenses did not relate to the
same result; accordingly, the jury reasonably could have found that the
defendant simultaneously acted intentionally and recklessly with respect
to different results, in that she specifically intended to cause serious
physical injury to the victim and, in so doing, consciously disregarded
a substantial and unjustifiable risk that her actions created a grave risk
of death to the victim.
b. The defendant’s conviction of intentional manslaughter and miscon-
duct with a motor vehicle was not legally inconsistent: the mental state
required for misconduct with a motor vehicle, namely, that the defendant
failed to perceive a substantial and unjustifiable risk that the manner in
which she operated her vehicle would cause the death of another person,
was not mutually exclusive with the mental state required for the crime
of intentional manslaughter, namely, that the defendant had the intent
to cause serious physical injury; because the defendant could have
intended to cause serious physical injury to the victim, as required for
intentional manslaughter, while, at the same time, have failed to perceive
a substantial and unjustifiable risk that the manner in which she operated
her vehicle would cause the victim’s death, as required for misconduct
with a motor vehicle, the mental state elements of each crime did not
relate to the same result.
Argued October 20, 2021—officially released March 29, 2022
Procedural History
Substitute information charging the defendant with
two counts of the crime of manslaughter in the first
degree, and with one count each of the crimes of mis-
conduct with a motor vehicle, risk of injury to a child,
and evasion of responsibility in the operation of a motor
vehicle, brought to the Superior Court in the judicial
district of Fairfield and tried to the jury before Kava-
newsky, J.; verdict and judgment of guilty; thereafter,
the court vacated the conviction as to one count of
manslaughter in the first degree, and the defendant
appealed to the Appellate Court, Lavine, Bright and
Bear, Js., which reversed in part the trial court’s judg-
ment, and the state, on the granting of certification,
appealed to this court. Reversed in part; further pro-
ceedings.
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Joseph T. Corradino,
state’s attorney, John C. Smriga, former state’s attor-
ney, and Marc R. Durso, senior assistant state’s attor-
ney, for the appellant (state).
Laila M. G. Haswell, senior assistant public defender,
for the appellee (defendant).
Opinion
ECKER, J. Following a jury trial, the defendant, Patri-
cia Daniels, was found guilty of manslaughter in the
first degree in violation of General Statutes § 53a-55
(a) (1) (intentional manslaughter),1 manslaughter in the
first degree in violation of § 53a-55 (a) (3) (reckless
manslaughter),2 and misconduct with a motor vehicle
in violation of General Statutes § 53a-57 (a) (criminally
negligent operation), among other crimes.3 At the sen-
tencing hearing, the trial court vacated the defendant’s
intentional manslaughter conviction pursuant to State
v. Polanco, 308 Conn. 242, 245, 61 A.3d 1084 (2013), at
the request of the state and rendered judgment on the
remaining counts of conviction. The defendant appealed
on the ground that the jury’s verdict was legally incon-
sistent because each of these three charged crimes
required mutually exclusive mental states. See State v.
Daniels, 191 Conn. App. 33, 38, 213 A.3d 517 (2019).
The Appellate Court agreed that the defendant’s convic-
tion of reckless manslaughter and criminally negligent
operation was legally inconsistent; id., 53; but also
determined that neither reckless manslaughter nor
criminally negligent operation was inconsistent with
intentional manslaughter. Id., 49, 51. Despite these latter
holdings, the Appellate Court did not remand the case
with direction to reinstate the intentional manslaughter
conviction but, instead, reversed the defendant’s con-
viction of all three crimes and remanded the case for
a new trial on those three charges. Id., 62–63. On appeal
to this court, the state argues that the Appellate Court
improperly ordered a new trial on all three charges
rather than reinstating the defendant’s intentional man-
slaughter conviction. We agree with the state and,
accordingly, reverse in part the judgment of the Appel-
late Court.
The relevant underlying facts are set forth in the
Appellate Court’s opinion. ‘‘The victim, Evelyn Agyei,
left her Bridgeport home at approximately 6 a.m. on
December 4, 2014. Her eleven year old son accompanied
her. Agyei and her son got into Agyei’s Subaru Outback
(Subaru), Agyei driving and her son in the back seat
on the passenger’s side. After traversing some back
roads, they took Bond Street and arrived at the intersec-
tion of Bond Street and Boston Avenue. Agyei stopped
at the red light and then proceeded to make a right turn
onto Boston Avenue, staying in the right lane. As she
was making the right turn, her son looked to the left
and saw a white BMW sport utility vehicle (BMW)
approximately two streets down, traveling at a high rate
of speed in the left lane.
‘‘After Agyei [turned] onto Boston Avenue, the driver
of the BMW pulled alongside Agyei’s vehicle. Agyei’s
son saw the BMW logo on the hood; however, he could
not see the driver or the license plate. The driver of
the BMW then moved into the right lane, hitting Agyei’s
Subaru once on the driver’s side and causing her to
begin to lose control of the vehicle. The driver of the
BMW then moved behind the Subaru and ran into it
from behind, causing the vehicle to cross the median,
proceed under a fence, and hit a tree. Tragically, Agyei
died from her injuries, and her son, who also was
injured, continues to have vision problems as a result
of the injuries he sustained. After an investigation . . .
the police, having concluded that the defendant was
the driver of the BMW that hit the Subaru . . . [and]
cause[d] Agyei’s death and the injuries to Agyei’s son,
arrested the defendant.’’ Id., 36–37.
Following a jury trial, the defendant was found guilty
of intentional manslaughter, reckless manslaughter,
and criminally negligent operation. See footnote 3 of
this opinion. At the sentencing hearing, the state moved
to vacate the defendant’s intentional manslaughter con-
viction, explaining: ‘‘I think that [disposition] goes along
with the spirit of the state’s intent during the beginning
of this case. The state did have the belief, when we
initially filed our long form information, that we [would
proceed] on both a legal theory of intentional and reck-
less manslaughter based on the fact that the defendant’s
vehicle came into contact with [Agyei’s] vehicle twice.
But, in light of the convictions, we’d ask that she be
sentenced solely on the reckless manslaughter [convic-
tion] and that [the court] vacate the intentional man-
slaughter [conviction] for sentencing purposes.’’ In
support of its request, the state cited to our double
jeopardy case law, namely, State v. Polanco, supra, 308
Conn. 242, State v. Miranda, 317 Conn. 741, 120 A.3d
490 (2015), and State v. Wright, 320 Conn. 781, 135 A.3d
1 (2016).4 The trial court granted the state’s request,
vacated the defendant’s conviction of intentional man-
slaughter, and sentenced the defendant to a total effec-
tive sentence of twenty years of incarceration, execution
suspended after sixteen years, and five years of pro-
bation.5
The defendant appealed from the trial court’s judg-
ment to the Appellate Court, claiming that the jury’s
verdict was legally inconsistent because the crimes of
intentional manslaughter, reckless manslaughter, and
criminally negligent operation each require proof of a
mutually exclusive mental state.6 See State v. Daniels,
supra, 191 Conn. App. 38. The Appellate Court agreed
with the defendant that the jury’s verdict was partially
inconsistent and reversed in part the judgment of the
trial court. Id., 53, 62–63. The Appellate Court determined
that there was no legal inconsistency in either the defen-
dant’s conviction of intentional and reckless manslaugh-
ter or her conviction of intentional manslaughter and
criminally negligent operation; id., 49, 51; but it found
that the defendant’s conviction of reckless manslaugh-
ter and criminally negligent operation was legally incon-
sistent. Id., 53. The Appellate Court reasoned that the
crimes of reckless manslaughter and criminally negli-
gent operation were ‘‘mutually exclusive when exam-
ined under the facts and theory of the state in the present
case’’ because they each require proof of a different
mental state as to the same result—the death of Agyei.
Id. Specifically, the defendant could not have been reck-
less as to the risk of Agyei’s death by ‘‘consciously
disregard[ing] a substantial and unjustifiable risk that
her actions would cause . . . death, while, simultane-
ously, [having been negligent as to the risk of Agyei’s
death by] failing to perceive a substantial and unjustifi-
able risk that her actions would cause . . . death.’’7
(Emphasis in original.) Id. Simply put, a person cannot
consciously disregard a risk that she fails to perceive.
To remedy the legal inconsistency in the jury’s ver-
dict, the Appellate Court vacated the defendant’s con-
viction of reckless manslaughter and criminally negligent
operation and remanded the case to the trial court for
a new trial on all three charges related to Agyei’s death:
intentional manslaughter, reckless manslaughter, and
criminally negligent operation. Id., 63. In doing so, the
Appellate Court rejected the state’s claim that the legal
inconsistency could be remedied by reinstating the
defendant’s intentional manslaughter conviction, point-
ing out that the state had ‘‘moved at sentencing to vacate
the conviction on that charge partly because doing so
went ‘along with the spirit of the state’s intent during
the beginning of this case’ ’’ and, therefore, that ‘‘the
most the state can ask for is what the defendant has
requested—a retrial on all three of the charges related to
Agyei’s death.’’ Id. We subsequently granted the state’s
petition for certification to appeal, limited to the follow-
ing issue: ‘‘Did the Appellate Court improperly order a
new trial rather than reinstate the defendant’s convic-
tion of intentional manslaughter in the first degree,
which was vacated for sentencing purposes under State
v. Polanco, [supra, 308 Conn. 242]?’’ State v. Daniels,
333 Conn. 918, 216 A.3d 651 (2019).
On appeal, the state argues that the proper remedy
for the legal inconsistency in the jury’s verdict is to
reinstate the defendant’s intentional manslaughter con-
viction pursuant to Polanco and its progeny. According
to the state, there is no substantive obstacle to resur-
recting the defendant’s intentional manslaughter con-
viction because ‘‘the reason for the state’s request to
vacate the intentional manslaughter conviction was to
avoid a potential double jeopardy problem.’’ The state
also contends that the defendant’s intentional man-
slaughter conviction was ‘‘not undermined by the Appel-
late Court’s rationale for [vacating] her other two
convictions’’ and that the record reflects that the jury
necessarily found, beyond a reasonable doubt, all of
the essential elements necessary to convict the defen-
dant of intentional manslaughter.
The defendant responds that the state waived its claim
for reinstatement of the defendant’s intentional man-
slaughter conviction because the state’s posttrial
motion to vacate was ‘‘not related to double jeopardy’’
but, rather, was prompted by ‘‘the state’s theory that
the crime was intentional or reckless, but not both.’’
Furthermore, the defendant contends that her inten-
tional manslaughter conviction is tainted by the legal
inconsistency in the jury’s verdict ‘‘because the convic-
tions required the jury to find inconsistent narratives
when it [found] the defendant [guilty] of all three charges.’’
Alternatively, the defendant claims that the Appellate
Court incorrectly determined that the jury’s guilty ver-
dict as to the intentional manslaughter count was not
legally inconsistent with its guilty verdict as to the reck-
less manslaughter and criminally negligent operation
counts.
I
REMEDY FOR THE JURY’S
INCONSISTENT VERDICT
The state claims that the Appellate Court improperly
ordered a new trial on the defendant’s conviction of
intentional manslaughter, reckless manslaughter, and
criminally negligent operation, rather than reinstating
the defendant’s intentional manslaughter conviction.
We agree.
The resolution of a claim of an inconsistent verdict
presents a question of law, over which our review is
plenary. See, e.g., State v. Hazel, 106 Conn. App. 213,
223, 941 A.2d 378, cert. denied, 287 Conn. 903, 947 A.2d
343 (2008). ‘‘When a jury has [returned] legally inconsis-
tent verdicts, there is no way for the reviewing court
to know which charge the jury found to be supported
by the evidence. . . . Accordingly, the court must
vacate both convictions and remand the case to the
trial court for a new trial.’’ (Citation omitted; footnote
omitted.) State v. Chyung, 325 Conn. 236, 247, 157 A.3d
628 (2017); see also State v. Alicea, 339 Conn. 385, 391,
260 A.3d 1176 (2021); People v. Gallagher, 69 N.Y.2d
525, 530, 508 N.E.2d 909, 516 N.Y.S.2d 174 (1987). In
other words, when a jury’s verdict is tainted by a legal
defect such as inconsistency, the tainted counts of con-
viction cannot stand.
The state, at this stage of the proceedings, does not
dispute that the defendant’s conviction of reckless man-
slaughter and criminally negligent operation is inher-
ently inconsistent and, therefore, properly was reversed
by the Appellate Court. The state argues, however, that
a new trial is unnecessary because the inconsistency
can be remedied by the reinstatement of the defendant’s
intentional manslaughter conviction, which was not
inconsistent with the jury’s verdict on the reckless man-
slaughter and criminally negligent operation counts
and, therefore, remains untainted by the defect.
In State v. Polanco, supra, 308 Conn. 242, we held
that, ‘‘when a defendant is convicted of greater and
lesser included offenses [in violation of the constitu-
tional right to be free from double jeopardy], the trial
court shall vacate the conviction for the lesser offense
rather than merging it with the conviction for the greater
offense.’’ Id., 260. We clarified that our adoption of
vacatur as the appropriate remedy for double jeopardy
violations did not preclude the reinstatement of the
defendant’s vacated conviction if the defendant’s ‘‘greater
offense is subsequently reversed for reasons unrelated
to the viability of the vacated conviction.’’ Id., 262. We
observed that this procedure already is employed by
‘‘many other courts’’ and that it is ‘‘a well established
practice in our appellate courts to direct the trial court
to render a judgment of conviction on a lesser included
offense on which the jury did not even return a verdict,
when the conviction for the greater offense is reversed
for reasons that do not touch the elements of the lesser
offense.’’ (Emphasis added.) Id., 262–63.
We extended this remedy beyond greater and lesser
included offenses in State v. Miranda, supra, 317 Conn.
741. In that case, the defendant claimed that his cumula-
tive convictions and sentences for capital felony, murder,
and felony murder violated double jeopardy because
they arose from the killing of a single victim. Id., 744–45,
751. We explained that applying the remedy of vacatur
‘‘beyond scenarios involving greater and lesser included
offenses will . . . promote inter-jurisdictional and
intra-jurisdictional harmony, and better safeguard against
unconstitutional multiple punishments.’’ Id., 753; see
State v. Wright, supra, 320 Conn. 830 (vacatur is appro-
priate remedy for defendant’s cumulative convictions
in violation of double jeopardy). We rejected the state’s
concern that a defendant might ‘‘ ‘escape punishment
entirely if he were to later succeed in reversing his
controlling [capital felony] conviction,’ ’’ reasoning that
there was ‘‘no substantive obstacle to resurrecting a
cumulative conviction that was once vacated on double
jeopardy grounds—provided that the reasons for over-
turning the controlling conviction would not also under-
mine the vacated conviction. . . . This holds true
regardless of whether the previously vacated conviction
was for a lesser included offense of the controlling con-
viction, or was cumulative in some other manner. In
either instance, a jury necessarily found that all the
elements of the cumulative offense were proven beyond
a reasonable doubt. Put differently, although the cumu-
lative conviction goes away with vacatur, the jury’s
verdict does not.’’ (Citation omitted.) State v. Miranda,
supra, 753–54.
Pursuant to the foregoing authorities, the defendant’s
intentional manslaughter conviction may be reinstated
if two criteria are met: (1) the conviction was vacated
to avoid a double jeopardy violation; and (2) the convic-
tion is unaffected by the legal inconsistency that neces-
sitated the reversal of the defendant’s conviction of
reckless manslaughter and criminally negligent opera-
tion. We address each of these criteria in turn.
A
The Defendant’s Conviction Was Vacated To Avoid a
Potential Double Jeopardy Violation
We must first determine whether the defendant’s
intentional manslaughter conviction was vacated to
avoid a double jeopardy violation. The state moved to
vacate the defendant’s intentional manslaughter convic-
tion at sentencing ‘‘under the legal theory of vacatur’’
articulated in ‘‘Polanco, Miranda, and Wright . . . .’’
The state explained that vacatur of the defendant’s
intentional manslaughter conviction ‘‘goes along with
the spirit of the state’s intent during the beginning of
this case. The state did have the belief, when we initially
filed our long form information, that we [would pro-
ceed] on both a legal theory of intentional and reckless
manslaughter based on the fact that the defendant’s
vehicle came into contact with [Agyei’s] vehicle twice.
But, in light of the convictions, we’d ask that she be
sentenced solely on the reckless manslaughter [convic-
tion] and that [the court] vacate the intentional man-
slaughter [conviction] for sentencing purposes.’’
We conclude that the defendant’s intentional man-
slaughter conviction was vacated for the purpose of
avoiding a potential double jeopardy violation.8 First,
in requesting vacatur, the state cited case law on vacatur
developed and applied by this court in the specific con-
text of double jeopardy violations. It appears that the
state believed that it was necessary to vacate one of the
two manslaughter convictions to avoid the imposition
of cumulative punishments. Second, the state explained
that its request was consistent with its theory at trial
that both strikes to Agyei’s vehicle arose from a single
act that was either intentional or reckless, thereby
invoking the first prong of the applicable double jeop-
ardy analysis, which requires ‘‘the charges [to] arise
out of the same act or transaction.’’ (Internal quotation
marks omitted.) State v. Ruiz-Pacheco, 336 Conn. 219,
227, 244 A.3d 908 (2020); see id., 226–27 (‘‘When the
defendant is charged with the violation of two distinct
statutes in a single criminal proceeding arising from a
single underlying set of events, we have employed a
two part analysis. First, the charges must arise out of the
same act or transaction. Second, it must be determined
whether the charged crimes are the same offense.’’
(Internal quotation marks omitted.)). Although the state
did not use the talismanic words ‘‘double jeopardy’’ to
explain its reasoning, the articulated basis for its vaca-
tur request was unequivocally rooted in double jeopardy
principles. See, e.g., State v. Edwards, 100 Conn. App.
565, 578 n.6, 918 A.2d 1008 (‘‘Connecticut courts have
refused to attach talismanic significance to the presence
or absence of particular words or phrases’’ (internal
quotation marks omitted)), cert. denied, 282 Conn. 928,
926 A.2d 666 (2007), and cert. denied, 282 Conn. 929,
926 A.2d 667 (2007).
The defendant contends that the state’s vacatur
request was not predicated on double jeopardy grounds
because the state sought to vacate ‘‘the greater charge
rather than the lesser charge’’ in violation of the well
established rule that, ‘‘when a defendant is convicted
of greater and lesser included offenses, the trial court
shall vacate the conviction for the lesser offense . . . .’’
(Emphasis added.) State v. Polanco, supra, 308 Conn.
260. This argument fails at the starting gate, however,
because reckless manslaughter is not a lesser included
offense of intentional manslaughter. ‘‘By definition, [a]
lesser included offense is one that does not require
proof of elements beyond those required by the greater
offense.’’ (Internal quotation marks omitted.) State v.
Johnson, 316 Conn. 34, 44, 111 A.3d 447 (2015). Reckless
manslaughter requires proof of essential elements that
intentional manslaughter does not, specifically, the
existence of ‘‘circumstances evincing an extreme indif-
ference to human life’’ and the requirement that the
defendant ‘‘recklessly engages in conduct which creates
a grave risk of death to another person . . . .’’ General
Statutes § 53a-55 (a) (3). Thus, it is possible to commit
the crime of intentional manslaughter without commit-
ting the crime of reckless manslaughter. See, e.g., State
v. Tinsley, 340 Conn. 425, 435–36, 264 A.3d 560 (2021)
(one offense is not lesser included offense of another
if it is possible to commit alleged greater crime without
committing alleged lesser crime). Intentional man-
slaughter and reckless manslaughter do not stand in
the position of greater and lesser included offenses.
Instead, they are alternative ways of committing the
same offense: manslaughter in the first degree.
B
The Inconsistency in the Jury’s Verdict Did Not Affect
the Defendant’s Vacated Conviction
We next address whether the defendant’s intentional
manslaughter conviction was affected by the legal incon-
sistency that necessitated the reversal of the defen-
dant’s conviction of reckless manslaughter and crimi-
nally negligent operation. It is undisputed that the
defendant’s conviction of reckless manslaughter and
criminally negligent operation convictions is legally
inconsistent because each offense requires proof of a
mutually exclusive mental state with respect to the
death of Agyei. More precisely, as the Appellate Court
observed, the defendant could not have consciously
disregarded the risk of Agyei’s death while simultane-
ously failing to perceive that same risk of death. See
State v. Daniels, supra, 191 Conn. App. 53. But this
holding does not automatically compel the conclusion
that the defendant’s intentional manslaughter convic-
tion is tainted by the inconsistency in the jury’s verdict.
We conclude, to the contrary, that the defendant’s mutu-
ally exclusive mental states with respect to the risk of
Agyei’s death do not affect the defendant’s intentional
manslaughter conviction under § 53a-55 (a) (1) because
that statutory provision does not require the jury to
find a specific mental state as to the risk of death.
To find the defendant guilty of intentional manslaugh-
ter in violation of § 53a-55 (a) (1), the jury was required
to find, beyond a reasonable doubt, that the defendant
intended ‘‘to cause serious physical injury to another
person’’ and ‘‘cause[d] the death of such person or of
a third person . . . .’’ General Statutes § 53a-55 (a) (1).
Unlike reckless manslaughter under § 53a-55 (a) (3) and
criminally negligent operation under § 53a-57 (a), the
crime of intentional manslaughter does not require
proof of the defendant’s mental state with respect to
the risk of death;9 a jury may find a defendant guilty
under § 53a-55 (a) (1) whether the defendant actually
intended to create a risk of death, or was reckless or
negligent with respect to such risk. All that the jury
was required to find was that the defendant intended
to cause Agyei serious physical injury and that she
caused Agyei’s death. Thus, the inconsistency in the
jury’s verdict as to whether the defendant ‘‘consciously
disregarded a substantial and unjustifiable risk that
her actions would cause Agyei’s death’’ or ‘‘fail[ed] to
perceive a substantial and unjustifiable risk that her
actions would cause Agyei’s death’’; (emphasis in origi-
nal) State v. Daniels, supra, 191 Conn. App. 53; does
not taint the jury’s guilty verdict as to the intentional
manslaughter count.
Because the defendant’s intentional manslaughter
conviction is not affected by the inconsistency in the
jury’s verdict and was vacated to avoid a potential dou-
ble jeopardy violation; see part I A of this opinion; we
conclude that reinstatement of that conviction is the
proper remedy in the present case. See State v. Polanco,
supra, 308 Conn. 262–63 (reinstatement of vacated con-
viction is proper remedy when cumulative conviction
is vacated for double jeopardy purposes and reason for
reversal does not affect vacated conviction); see also
State v. Miranda, supra, 317 Conn. 755 (same). The
‘‘revival of the [vacated] manslaughter conviction would
serve the interest of justice’’; (internal quotation marks
omitted) State v. Miranda, supra, 755; because the jury
returned a guilty verdict on that count, reflecting that
it had ‘‘found that all the elements of the [vacated]
offense were proven beyond a reasonable doubt.’’ Id.,
754. Accordingly, we reverse the judgment of the Appel-
late Court as to the remedy for the jury’s inconsis-
tent verdict.10
II
INCONSISTENT VERDICT
We next address the defendant’s alternative grounds
for affirmance. The defendant argues that the Appellate
Court erred in determining that the jury’s guilty verdict
of intentional manslaughter is not inconsistent with the
defendant’s conviction of reckless manslaughter and
criminally negligent operation. According to the defen-
dant, because each conviction required a mutually
exclusive mental state and it is impossible to ascertain
which of the three inconsistent states of mind the jury
attributed to the defendant, the verdict is legally incon-
sistent with respect to all three counts.
The following legal principles guide our analysis. ‘‘A
claim of legally inconsistent convictions, also referred
to as mutually exclusive convictions, arises when a
conviction of one offense requires a finding that negates
an essential element of another offense of which the
defendant also has been convicted. . . . In response
to such a claim, we look carefully to determine whether
the existence of the essential elements for one offense
negates the existence of [one or more] essential ele-
ments for another offense of which the defendant also
stands convicted. If that is the case, the [convictions]
are legally inconsistent and cannot withstand challenge.
. . . Whether two convictions are mutually exclusive
presents a question of law, over which our review is
plenary.’’ (Internal quotation marks omitted.) State v.
Alicea, supra, 339 Conn. 390–91.
A
Intentional Manslaughter and Reckless Manslaughter
The defendant contends that the crimes of intentional
manslaughter in the first degree in violation of § 53a-
55 (a) (1) and reckless manslaughter in the first degree
in violation of § 53a-55 (a) (3) are legally inconsistent
pursuant to State v. King, 216 Conn. 585, 592–94, 583
A.2d 896 (1990) (King 1990), and State v. Chyung,
supra, 325 Conn. 247–48. The defendant argues that,
similar to King 1990 and Chyung, the defendant’s con-
duct in the present case constituted a single act with
one result, namely, death, and, therefore, that ‘‘multiple
states of mind cannot be attributed to the defendant.’’
We disagree.
Our recent decision in State v. Alicea, supra, 339 Conn.
385, provides an instructive survey and analysis of our
case law regarding the legal consistency of multiple
verdicts. As we explained in Alicea, ‘‘the statutory defi-
nitions of intentionally and recklessly are mutually
exclusive and inconsistent.’’ (Internal quotation marks
omitted.) Id., 391–92, quoting State v. King, supra, 216
Conn. 593–94. ‘‘Intentional conduct requires the defen-
dant to possess a ‘conscious objective . . . to cause’
the result described in the statute defining the offense.
. . . General Statutes § 53a-3 (11). By contrast, reckless
conduct requires that the defendant ‘is aware of and
consciously disregards a substantial and unjustifiable
risk’ that the result described in the statute will occur.
. . . General Statutes § 53a-3 (13). Thus, a reckless
mental state is inconsistent with an intentional mental
state because ‘one who acts recklessly does not have
a conscious objective to cause a particular result.’ ’’
(Emphasis in original.) State v. Alicea, supra, 392.
Nonetheless, convictions involving both intentional
and reckless mental states may be legally consistent ‘‘in
certain circumstances. For example, when each mental
state pertains to a different act, a different victim, or
a different injury, then the convictions are consistent.
. . . Significantly, we have also explained that convic-
tions involving both intentional and reckless mental
states may be legally consistent when each mental state
pertains to a different result.’’ (Citations omitted;
emphasis in original.) Id. Because ‘‘[m]ental states . . .
exist only with reference to particular results . . . it
is necessary to examine the mental state element as it
arises in each particular statute defining an offense to
determine whether actual inconsistency exists.’’ (Inter-
nal quotation marks omitted.) State v. Nash, 316 Conn.
651, 668, 114 A.3d 128 (2015).
Similar to the defendant in the present case, the
defendant in Alicea claimed that the verdict finding him
guilty of both intentional assault and reckless assault
was legally inconsistent ‘‘because [the] requisite mental
states—intentional and reckless—are mutually exclu-
sive,’’ and ‘‘it was impossible for the jury to find both
mutually exclusive mental states with respect to only
one act, one victim, and one injury.’’ State v. Alicea,
supra, 339 Conn. 390. We rejected the defendant’s claim,
explaining that ‘‘ ‘[t]he relevant inquiry . . . is whether
the opposing mental states relate to the same result,
not whether both convictions relate to the same injury.’
. . . The word ‘result’ in this context referred to the
result of the requisite mental state, or, in other words,
the statutory objective associated with the respective
mental state.’’ (Citation omitted; emphasis in original.)
Id., 396. Thus, the relevant inquiry is not ‘‘whether the
statutes at issue require findings that the defendant
caused the same injury to the victim. Rather . . . [the
convictions] are legally inconsistent only if they require
that the defendant possess the opposing mental states
with respect to the same objective . . . .’’ (Emphasis in
original; internal quotation marks omitted.) Id., 396–97.
We held in Alicea that the defendant’s conviction of
intentional assault and reckless assault was not legally
inconsistent because the objective associated with the
different mental state elements of the two statutory
provisions were not mutually exclusive. We explained
that ‘‘[t]he jury reasonably could have found that the
defendant simultaneously possessed both [intentional
and reckless] mental states pertaining to his singular
action of cutting [the victim’s] throat. In other words,
the jury reasonably could have found that the defendant
intended to cause [the victim] serious physical injury
and simultaneously disregarded the risk that his con-
duct would cause [the victim’s] death.’’ Id., 394; see
State v. Nash, supra, 316 Conn. 666 (defendant’s convic-
tion of intentional and reckless assault in first degree
was not legally inconsistent because jury reasonably
could have found that defendant intended to injure
another person and recklessly created risk of that per-
son’s death).
To resolve the defendant’s claim in the present case,
we must analyze whether the crimes of intentional man-
slaughter and reckless manslaughter require the defen-
dant to possess opposing mental states with respect
to the same statutory objective. Section 53a-55 (a) (1)
provides in relevant part that a person is guilty of inten-
tional manslaughter in the first degree when, ‘‘[w]ith
intent to cause serious physical injury to another per-
son, he causes the death of such person or of a third
person . . . .’’ (Emphasis added.) Thus, to find the
defendant guilty of intentional manslaughter, the jury
was required to find that the defendant (1) had the
intent to cause serious physical injury to a person, and
(2) caused the death of such person or a third person.
Section 53a-55 (a) (3) provides in relevant part that
a person is guilty of reckless manslaughter in the first
degree when, ‘‘under circumstances evincing an extreme
indifference to human life, he recklessly engages in
conduct which creates a grave risk of death to another
person, and thereby causes the death of another per-
son.’’ (Emphasis added.) Thus, to find the defendant
guilty of reckless manslaughter, the jury was required
to find that the defendant (1) acted under circumstances
evincing an extreme indifference to human life, (2) reck-
lessly engaged in conduct that created a grave risk of
death to another person, and (3) caused the death of
another person.
We agree with the Appellate Court that ‘‘the mens
rea elements in the two provisions, namely, the ‘intent
to cause serious physical injury’ and ‘recklessly engag-
[ing] in conduct which creates a grave risk of death’;
General Statutes § 53a-55 (a) [(1) and (3)]; do not relate
to the same result.’’ State v. Daniels, supra, 191 Conn.
App. 48–49. As we explained in part I B of this opinion,
subdivision (1) of § 53a-55 (a) does not require the jury
to find a specific mental state as to the risk of death—
it requires only that the jury find a particular mental
state as to the element of serious physical injury. See
footnote 9 of this opinion and accompanying text. Sub-
division (3), by contrast, specifies a particular mental
state as to the risk of death—it requires the jury to find
that the defendant was reckless with respect to the
grave risk of death resulting from her conduct. Accord-
ingly, as the Appellate Court correctly concluded, the
jury consistently could have found that the defendant
‘‘specifically intended to cause serious physical injury
to Agyei and that, in doing so, she consciously disre-
garded a substantial and unjustifiable risk that her
actions created a grave risk of death to Agyei.’’ (Empha-
sis in original.) State v. Daniels, supra, 49. Because the
jury reasonably could have found that the defendant
possessed both mental states simultaneously, we agree
with the Appellate Court that the defendant’s conviction
of intentional manslaughter and reckless manslaughter
was not legally inconsistent.11
B
Intentional Manslaughter and Criminally
Negligent Operation
The defendant also claims that her conviction of
intentional manslaughter and criminally negligent oper-
ation is inconsistent because the ‘‘[d]efendant could not
have intended to cause serious physical injury while
simultaneously failing to perceive a risk of death.’’ We
again disagree.
We have already explained that § 53a-55 (a) (1) pro-
vides that a person is guilty of intentional manslaughter
in the first degree when, ‘‘[w]ith intent to cause serious
physical injury to another person, he causes the death
of such person or of a third person . . . .’’ (Emphasis
added.) In order to find the defendant guilty of inten-
tional manslaughter, we repeat, the jury was required
to find that the defendant (1) had the intent to cause
serious physical injury to a person, and (2) caused the
death of such person or of a third person. Section 53a-
57 (a), which established the offense of criminally negli-
gent operation, provides that ‘‘[a] person is guilty of
misconduct with a motor vehicle when, with criminal
negligence in the operation of a motor vehicle, he causes
the death of another person.’’ (Emphasis added.) ‘‘Crim-
inal negligence’’ is defined in relevant part as ‘‘fail[ing]
to perceive a substantial and unjustifiable risk that such
result will occur or that such circumstance exists. The
risk must be of such nature and degree that the failure to
perceive it constitutes a gross deviation from the stan-
dard of care that a reasonable person would observe
in the situation . . . .’’ General Statutes § 53a-3 (14). To
find the defendant guilty of criminally negligent opera-
tion, the jury was required to find that (1) she failed to
perceive a substantial and unjustifiable risk that the
manner in which she operated her vehicle would (2) cause
the death of another person.
We agree with the Appellate Court that the mental state
requirements for these two statutes are not mutually
exclusive. As the Appellate Court cogently explained,
‘‘[o]ne can intend to cause serious physical injury to
another, while, at the same time, [fail] to perceive a
substantial and unjustifiable risk that the manner in
which she operated her vehicle would cause the victim’s
death. The mental state elements in the two provi-
sions—failing to perceive a substantial and unjustifi-
able risk that your manner of operation would cause
death and an intent to cause serious physical injury—
do not relate to the same result. Because the defendant’s
[conviction] of intentional manslaughter and criminally
negligent operation required the jury to find that the
defendant acted intentionally and criminally negligent
with respect to different results (failing to perceive a
substantial and unjustifiable risk of death and
intending to cause serious physical injury), the defen-
dant cannot prevail on her claim that the mental states
required for those crimes are mutually exclusive and,
therefore, that the [verdict was] legally inconsistent.’’
(Emphasis altered.) State v. Daniels, supra, 191 Conn.
App. 50–51.
The defendant claims that the Appellate Court’s anal-
ysis relied on ‘‘an overly technical application of the test
of legal inconsistency’’ and that, realistically speaking,
it is impossible to intend to cause serious physical injury
while simultaneously failing to perceive a risk of death.
Not so. As we explained in Alicea, ‘‘§ 53a-3 (4) does
not limit its definition of ‘serious physical injury’ to an
injury that creates a substantial risk of death; rather,
it continues, ‘or which causes serious disfigurement,
serious impairment of health or serious loss or impair-
ment of the function of any bodily organ . . . .’ ’’
(Emphasis in original.) State v. Alicea, supra, 339 Conn.
397–98 n.4, quoting General Statutes § 53a-3 (4). The
statute therefore encompasses injuries that do not nec-
essarily create a risk of death. See, e.g., State v. Ovechka,
292 Conn. 533, 547, 975 A.2d 1 (2009) (person sprayed
with pepper spray suffered ‘‘serious physical injury,’’
as defined by § 53a-3 (4)); State v. Irizarry, 190 Conn.
App. 40, 48, 209 A.3d 679 (fractured jaw, ‘‘contusions,
abrasions, and bleeding from [the victim’s] ear’’ consti-
tute ‘‘ ‘serious physical injury’ ’’), cert. denied, 333 Conn.
913, 215 A.3d 1210 (2019). It is possible to intend to
cause ‘‘serious physical injury,’’ as defined by § 53a-3
(4), while, at the same time, fail to perceive a risk of
death. For this reason, we conclude that the jury’s ver-
dict of guilty as to the crimes of reckless manslaughter
and criminally negligent operation was not legally
inconsistent.
The judgment of the Appellate Court is reversed as
to the remedy for the jury’s inconsistent verdict only
and the case is remanded to that court with direction
to remand the case to the trial court with direction
to reinstate the defendant’s intentional manslaughter
conviction, to sentence the defendant on that count, and
to resentence the defendant on the remaining counts
of conviction; the judgment of the Appellate Court,
including the vacating of the defendant’s conviction of
reckless manslaughter and criminally negligent opera-
tion, is otherwise affirmed.12
In this opinion the other justices concurred.
1
General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree when (1) [w]ith intent to cause
serious physical injury to another person, he causes the death of such person
or of a third person . . . .’’
2
General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life, he recklessly engages in
conduct which creates a grave risk of death to another person, and thereby
causes the death of another person.’’
3
The defendant also was convicted of risk of injury to a child in violation
of General Statutes § 53-21 (a) (1) and evasion of responsibility in the opera-
tion of a motor vehicle in violation of General Statutes § 14-224 (a). The
defendant’s conviction of these crimes is not at issue in the present appeal.
4
Defense counsel objected to the state’s motion to vacate the intentional
manslaughter conviction, arguing that the defendant wanted to preserve her
due process claim on appeal that the state had overcharged the case by
adding the intentional manslaughter count ‘‘on the eve of trial . . . .’’
5
On the reckless manslaughter count, the trial court imposed a sentence
of twenty years of incarceration, execution suspended after sixteen years,
and five years of probation. The defendant also was sentenced to five years
of incarceration for criminally negligent operation, ten years of incarceration
for risk of injury to a child, and ten years of incarceration for evasion of
responsibility. All of the defendant’s sentences run concurrently.
6
The defendant also claimed that the trial court improperly failed to
exclude testimonial hearsay in violation of her constitutional right to con-
frontation. See State v. Daniels, supra, 191 Conn. App. 53–54. The Appellate
Court declined to review the defendant’s unpreserved evidentiary claim on
the ground that it was not of constitutional magnitude. Id., 54; see State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989); see also In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of
Golding). That issue is not before us on appeal.
7
During oral argument before the Appellate Court, the state conceded
that, if both strikes to Agyei’s vehicle are viewed as one continuous act,
the mental state elements of reckless manslaughter and criminally negligent
operation are mutually exclusive. See State v. Daniels, supra, 191 Conn.
App. 51. The state argued, however, that the jury could have found each
strike of Agyei’s vehicle to be a separate and distinct act and, therefore,
that the jury’s verdict as to both crimes was not legally inconsistent. Id.The Appellate Court rejected the state’s argument on the ground that the
state consistently had argued at trial that both strikes of Agyei’s vehicle
were one continuous act and could not change its theory of the case on
appeal. Id. The state does not challenge the Appellate Court’s conclusion
on this point in the present appeal.
8
We need not decide whether the defendant’s conviction of intentional
manslaughter and reckless manslaughter would actually violate the double
jeopardy clause because that issue is not presented on appeal. Suffice it to
say that the state’s concern in this regard was not unreasonable in light of
our case law holding that it violates the prohibition against double jeopardy
to convict the defendant of multiple homicide crimes for the death of one
victim. See, e.g., State v. Miranda, supra, 317 Conn. 747 (‘‘the imposition
of cumulative punishments for the homicide offenses of capital felony and
felony murder violates constitutional protections against double jeopardy
if those offenses arise from the killing of a single victim’’); State v. Chicano,
216 Conn. 699, 710, 584 A.2d 425 (1990) (‘‘intentional murder, felony murder,
and manslaughter in the first degree are all homicide offenses,’’ and, there-
fore, defendant’s conviction of felony murder and first degree manslaughter
for death of single victim violates double jeopardy prohibition) (overruled
on other grounds by State v. Polanco, 308 Conn. 242, 61 A.3d 1084 (2013)),
cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); State
v. John, 210 Conn. 652, 696, 557 A.2d 93 (‘‘the legislature contemplated that
only one punishment would be imposed for a single homicide, even if that
homicide involved the violation of two separate statutory provisions’’), cert.
denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), and cert. denied
sub nom. Seebeck v. Connecticut, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d
50 (1989). Thus, we credit the state’s explanation regarding the reason for
requesting the vacatur of the defendant’s intentional manslaughter con-
viction.
9
The intent to cause ‘‘serious physical injury’’ is a required element under
§ 53a-55 (a) (1), and proof that the defendant intended to cause a ‘‘physical
injury [that] creates a substantial risk of death’’ is one of four ways to
establish that element. General Statutes § 53a-3 (4); see General Statutes
§ 53a-3 (4) (‘‘ ‘[s]erious physical injury’ means physical injury which creates
a substantial risk of death, or which causes serious disfigurement, serious
impairment of health or serious loss or impairment of the function of any
bodily organ’’). Because of these statutory alternatives, the jury in the present
case was free to find the defendant guilty of intentional manslaughter without
finding that she had any particular state of mind with respect to the risk
of death created by her actions.
10
The defendant also claims that the state is pursuing a different legal
theory on appeal than the one it pursued at trial, in violation of her right
to notice of the charges against her. See, e.g., State v. King, 321 Conn. 135,
149, 136 A.3d 1210 (2016) (‘‘[p]rinciples of due process do not allow the
state, on appeal, to rely on a theory of the case that was never presented
at trial’’). Specifically, the defendant claims that the state’s legal ‘‘theory of
the case at trial was that the defendant could be found guilty of . . . only
one of the three’’ crimes predicated on Agyei’s death, whereas, on appeal,
the state now argues that the defendant can be convicted ‘‘of all three
charges . . . .’’ The defendant misunderstands the state’s legal theory on
appeal. The state does not challenge the Appellate Court’s conclusion that
the defendant’s conviction of reckless manslaughter and criminally negligent
operation is inherently inconsistent and, therefore, must be reversed. The
state challenges only the remedy ordered by the Appellate Court to cure
the inconsistency, arguing that reinstatement of the defendant’s intentional
manslaughter conviction is appropriate because the defendant’s intentional
manslaughter conviction is unaffected by the inconsistency in the jury’s
verdict, and the jury expressly found that the state had proven the essential
elements of intentional manslaughter beyond a reasonable doubt. Because
it is undisputed that the defendant was on notice that she could be convicted
of intentional manslaughter, we conclude that the defendant’s due process
claim lacks merit.
11
The defendant also contends that this case is distinguishable from Nash,
supra, 316 Conn. 651, and State v. King, 321 Conn. 135, 136 A.3d 1210 (2016)
(King 2016), insofar as those cases involved two different results to the
victim, whereas the present case involves only one result. Our holding in
Alicea is dispositive of this claim. As we reasoned in Alicea, the outcomes
of Nash and King 2016 ‘‘actually hinged on the objective associated with
each statutory, mental state element, not the acts performed by the defen-
dants or the injuries suffered by the victims.’’ (Emphasis in original.) State
v. Alicea, supra, 339 Conn. 397. Similar to both Nash and King 2016, the
defendant’s actions in the present case related to two different results—
serious physical injury and the risk of death—and the jury reasonably could
have found that the defendant possessed a distinct mental state with respect
to each of these results.
12
In accordance with the aggregate package theory, we vacate the defen-
dant’s sentence in its entirety and remand not only for sentencing on the
intentional manslaughter conviction, but also for resentencing on the convic-
tions that were not vacated by the Appellate Court, namely, risk of injury
to a child and evasion of responsibility in the operation of a motor vehicle.
See, e.g., State v. LaFleur, 307 Conn. 115, 164, 51 A.3d 1048 (2012) (‘‘Pursuant
to [the aggregate package] theory, we must vacate a sentence in its entirety
when we invalidate any part of the total sentence. On remand, the resentenc-
ing court may reconstruct the sentencing package or, alternatively, leave the
sentence for the remaining valid conviction or convictions intact.’’ (Internal
quotation marks omitted.)).