State v. Shenkman ( 2014 )

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STATE OF CONNECTICUT v. RICHARD SHENKMAN
(AC 36408)
Gruendel, Prescott and Bishop, Js.
Argued September 19—officially released December 9, 2014
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
Adele V. Patterson, senior assistant public defender,
for the appellant (defendant).
Mitchell S. Brody, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Vicki Melchiorre, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
GRUENDEL, J. The defendant, Richard Shenkman,
appeals from the judgments of conviction, rendered
after a jury trial, in docket number CR-09-633370, of
kidnapping in the first degree in violation of General
Statutes § 53a-92 (a) (2) (C), criminal violation of a
protective order in violation of General Statutes § 53a-
223, and carrying a pistol without a permit in violation
of General Statutes § 29-35, and, in docket number CR-
09-224139, of threatening in the second degree in viola-
tion of General Statutes § 53a-62 (a) (1), threatening in
the second degree in violation of § 53a-62 (a) (2), assault
in the third degree in violation of General Statutes § 53a-
61 (a) (1), threatening in the first degree in violation
of General Statutes § 53a-61aa (a) (1) (A), interfering
with an officer in violation of General Statutes § 53a-
167a, attempt to commit assault of public safety person-
nel in violation of General Statutes §§ 53a-49 and 53a-
167c, and arson in the first degree in violation of General
Statutes § 53a-111 (a) (4). On appeal, the defendant
claims that (1) the trial court improperly denied his
motion for a bill of particulars, (2) certain convictions
violate the prohibition against double jeopardy, and (3)
the court improperly instructed the jury on the defense
of mental disease or defect. We affirm the judgments
of the trial court.
From the evidence adduced at trial, the jury reason-
ably could have found the following facts. The defen-
dant and the victim, Nancy Tyler, married in 1993. Their
relationship deteriorated in subsequent years. The
defendant had a bad temper and was very controlling.
On one occasion in 2000, the defendant furiously
berated Tyler in an intimidating manner while backing
her up against a wall; on another in 2003, the defendant
threw her across a room, placed his hands around her
neck, and attempted to choke her. The marriage
reached its nadir in January, 2006, when the defendant
kicked Tyler and their children out of the family home in
South Windsor. Tyler filed for divorce soon thereafter.
The defendant only grew more enraged with that
development, and tried to force Tyler to stay with him,
telling her he could not live without her. When she
refused, he responded with various threats. The defen-
dant repeatedly told Tyler that he was going to commit
suicide in front of their children as part of an effort to
‘‘destroy’’ her. He warned Tyler, an attorney by profes-
sion, that he ‘‘was going to have [her] law license taken
away so [she] couldn’t work anymore,’’ and he fre-
quently contacted the partners at her law firm and ‘‘tried
to drag them into the divorce [and] to tell them that
they should fire’’ her. On numerous occasions in the
past, the defendant told Tyler that ‘‘he had learned over
time that the crazier he acted the more he got his way.
And at one point [they] talked about . . . a number of
lawsuits going on and [she] asked him, how do you
handle these things, how is it that they always just go
away, and he said, because I act crazy and they give up.’’
When the defendant became controlling, ‘‘the wisest
response [in her view] was to give in because his behav-
ior would escalate, he would get nastier and nastier and
yell and scream and slam around [and] make everybody
miserable, so the easiest thing was just to give in.’’
During their divorce proceeding, the defendant called
Tyler’s attorney, John Harvey, at home late one night
and cautioned, ‘‘I will lie, cheat or do whatever I have
to do to use this system to get payback.’’ The defendant
told Harvey ‘‘over and over and over’’ that ‘‘[h]e just
wanted to see [Tyler] destroyed.’’ The defendant simi-
larly sent a handwritten letter dated November 27, 2008,
to Michael Riggs, another attorney who represented
Tyler in the dissolution proceeding, which stated in
relevant part that ‘‘[t]he ‘war [with Tyler]’ enters year
four next month. We are only in the middle chapters
of this nasty saga. Watch the local [and] national news-
casts the week of Dec[ember] 14 for the next chapter
with reenforcements entering the battlefield.’’ The
defendant previously had visited Harvey’s office and
threatened to do something to the family home in South
Windsor. On another occasion, the defendant threat-
ened that ‘‘[h]e was going to destroy everything so that
[Tyler] ended up with nothing.’’
The court dissolved the marriage in 2008, and entered
certain financial orders. When the defendant wilfully
violated those orders, the court on June 16, 2009, found
him in contempt. The court then ordered the defendant
to vacate the family home, located at 96 Tumblebrook
Drive in South Windsor (house), and continued the mat-
ter ‘‘for compliance until July 7, 2009.’’ At that time, the
defendant owed Tyler approximately $180,000, and title
to the house had vested in Tyler. Pursuant to the court’s
outstanding orders, the defendant ‘‘either had to pay
[Tyler] the money [by July 7, 2009] or had to vacate the
house so that [she] could sell it and pay the debts
. . . .’’ At that time, Tyler’s safety was the subject of
a protective order that precluded the defendant from
having any contact with her.1
On July 7, 2009, the defendant and Tyler were due
to appear in court for further proceedings on the motion
for contempt. Tyler arrived at her office in downtown
Hartford early that morning. Shortly after 8 a.m., she
exited the building to pick up a garment from a nearby
dry cleaning business. Once outside, she saw the defen-
dant’s van parked across the street. Mindful of the pro-
tective order, she quickly picked up her garment and
headed back to the office. As she entered the elevator
to her office building, Tyler called Susan Arnold, a close
friend, and headed to the parking garage where her
vehicle was located. When she approached the vehicle,
the defendant ‘‘came out of nowhere . . . and grabbed
[Tyler] . . . and he had a gun in his hand.’’ Arnold,
who remained on the phone with Tyler as the encounter
commenced, recognized the defendant’s voice. Tyler
urged Arnold to contact the police as the defendant
grabbed her cell phone from her hand. Arnold immedi-
ately called 911, and then called Tyler’s cell phone to
no avail. In response, the South Windsor Police Depart-
ment was notified of a possible kidnapping involving
the defendant and Tyler. Police Chief Gary Tyler2 and
Commander Matthew Reed, who were on a general
patrol of the community at that time, proceeded to
the house, where they observed six infrared cameras
mounted outside, windows that were covered from the
inside, and a series of metal pipes in the backyard that
were ‘‘crisscrossed’’ in ‘‘what appeared to be an elabo-
rate blockade . . . .’’ They vacated the premises when
informed that the defendant and Tyler were
approaching. Another officer, Mark Halibozek,
remained in the vicinity of the house to maintain surveil-
lance of the property. The Capital Region Emergency
Services Team also was activated, from which a tactical
team and a hostage negotiation team were assembled.3
After grabbing Tyler’s cell phone in the parking
garage, the defendant shoved her toward her vehicle.
He then forced her into the driver’s seat and ordered
her to drive them to the house. Seated behind her in
the vehicle, the defendant warned her that if she made
any signal or attempt for help, he would shoot her.
Tyler complied and drove to South Windsor, eventually
parking the vehicle in the house’s attached garage. The
defendant then manually locked the garage door, forced
Tyler inside the house, and fortified the door with ‘‘a
big heavy steel bar’’ that he inserted into brackets
mounted to the sides of the door.
Once inside the house, the defendant handcuffed Tyl-
er’s right wrist to his left wrist. As Tyler recounted at
trial, he then said that ‘‘he had things to tell me and
things to show me and that things had been done that
weren’t right and he was going to fix them and he had
things I needed to see because I had taken everything
away from him, his family, his life, his work—I had
taken everything away from him, but he was going to
fix it.’’ The defendant told Tyler that he was going to
provide proof of his cancer diagnosis and became angry
when he could not find it.4 He then informed her that
‘‘it’s all up to the police how this day ends. You could
walk out of here at the end of the day if the police
handle this right.’’
The defendant led Tyler into the living room and
turned on two monitors that were connected to the
outside cameras. When the monitors displayed two peo-
ple in the front yard, the defendant remarked, ‘‘I didn’t
think they would be here this quickly’’ and ‘‘I’m not
ready . . . I’ve got things all set up here, but I needed
a little bit more time.’’ The defendant then placed a
telephone call to the South Windsor Police Department
and angrily informed them to get ‘‘the F out of his yard,
I don’t want any F’n police’’ on the property. When
the officers did not depart as fast as he wanted, the
defendant told the police dispatcher that ‘‘you people
better take me seriously, you don’t know what you’re
dealing with here.’’ At that point, the defendant picked
up the gun and fired a shot ‘‘right across the front’’ of
Tyler toward a kitchen wall. He then hung up the
telephone.
Minutes later, the defendant again called the police.
He demanded to speak with a hostage negotiator, stat-
ing that ‘‘[t]his is a hostage situation.’’ He then told
Tyler that the police ‘‘don’t know what they’re dealing
with. I’ve been working for eight months on this. I’ve
been getting ready for this for eight months. I have
plans and contingency plans. I have everything all laid
out, they better take me seriously.’’ He made Tyler sit
holding a rope with a noose on it, and told her ‘‘that’s
what I’m going to hang you with, I think you ought to
hold onto it for a while.’’ He showed her all sorts of
paperwork on ‘‘things that he had downloaded from
the Internet, and he said, I did all the research on all
the different ways to die, and I’m not sure if I’m going
to shoot you or hang you . . . .’’ Tyler sat terrified
holding the noose for more than one-half hour as the
defendant continued to call the police and make
demands.
The police responded by evacuating the public from
the vicinity of the house and setting up a perimeter
around the area. Among law enforcement personnel
called to the scene were crisis negotiators, snipers, a
hazardous material team, and a tactical SWAT team. In
total, approximately 80 to 100 law enforcement person-
nel responded to the emergency at the house. The police
chief authorized the officers to shoot to incapacitate
the defendant, so long as they did not endanger Tyler.
During a subsequent telephone call to the police, the
defendant demanded to speak with a negotiator and
stated that he was on a suicide mission. The defendant
then spoke with Michael Thompson, a South Windsor
police officer and crisis negotiator, for approximately
twenty minutes. The conversation ended after the
defendant grew upset with Thompson’s representation
that no criminal charges had been filed against him at
the time. The defendant informed Thompson that ‘‘he
knew they were going to charge him criminally . . .
he understood that,’’ so he refused to speak further
with Thompson.
The defendant later spoke with other crisis negotia-
tors over the course of approximately nine hours,
including Detective Donald Skewes of the Vernon
Police Department and Officer Lisa Arsenault of the
Glastonbury Police Department. When Skewes took
over the negotiations from Thompson, the defendant
informed him that ‘‘you haven’t trained for this. I put
about eight months of training into—or planning into
this event.’’ During those conversations, Tyler heard
the defendant state that ‘‘he had set this whole thing
up, the house was completely booby trapped. He said
[that] he had the front door wired so that if anybody
tried to get in, the front door would explode; all the
openings were set with explosives. He had motion
detectors on the roof because there were skylights, and
the motion detectors were set to explode if anybody
tried to get onto the roof. He said [that] he had set up
propane pockets in places that nobody would know
around the house.’’5 Tyler saw propane tanks in the
basement and indoor pool areas of the house. The
defendant also told Tyler that ‘‘he had gone down to
West Virginia and had bought sixty-five pounds of explo-
sives, and that was going to be his key to freedom . . . .
[T]hat was his bargaining chip because . . . [h]e was
going to turn in the seller of the explosives to the Home-
land Security people in exchange for some kind of
plea deal.’’
At one point, the defendant demanded a copy of a
hostage negotiation manual from the police. When Tyler
inquired as to his rationale, the defendant explained that
he already had downloaded a copy from the Internet and
simply was testing the police, as he wanted to see if
they would provide the ‘‘real thing,’’ and wanted to
compare it to his downloaded copy. When the police
did not promptly comply with his request, the defendant
became furious. As Tyler testified: ‘‘He was yelling and
screaming on the phone [and told them] send me the
goddamn manual . . . you’re not meeting my
demands, you’re not taking me seriously. I’m in control
here . . . you’re not listening, send me the manual or
she’s going to die.’’ The defendant then placed the gun
against Tyler’s head and started screaming that if they
didn’t send the manual, she was going to die. He started
counting down and warned that if he didn’t receive the
manual when he finished, he would shoot her. The
police then faxed the manual to the defendant.
As these events unfolded, the defendant monitored
media coverage, scouring the Internet in search of news
articles on the situation. At one point, he told Tyler that
‘‘if they start putting up stories about this, you’re dead.’’
When a story later appeared on the Hartford Courant
website, the defendant again became enraged. While
speaking to police negotiators on the telephone, the
defendant held the gun to Tyler’s head and instructed
her to beg for her life. As she testified, the negotiators
‘‘kept saying, we can’t make [the media] do anything,
we don’t control the newspaper, and [the defendant]
kept saying she’s going to die, get those stories down
or she is dead. And he had me screaming into the phone,
and he said you tell them . . . there’s a gun to your
head and you’re gonna die if they don’t get those stories
down, and I was screaming and crying saying please
take the stories down because we could see them up
there and nothing was happening, and he had the gun
to my head, and I knew it was loaded.’’
Later in the day, the defendant told Tyler that ‘‘we
should never have gone through this, we should never
have split up, we should never have gotten the divorce.’’
When he explained that he could not live without her
and asked her to remarry him, Tyler answered yes in
an effort to save her life. He then told her that the judge
who had presided over their divorce proceeding should
perform the ceremony, and then stated that they would
need a priest as well, both for the marriage and to
administer her last rites. Perplexed, Tyler asked why
she would need last rites; the defendant replied, ‘‘you
deserve last rites; you’re going to need them.’’ The
defendant then demanded a priest and a marriage
license from the police, who eventually faxed such a
license to the defendant. All discussion of remarriage
ended at that point.
When the defendant complained that negotiators had
not met his demand to furnish a priest, he again forced
Tyler to beg over the telephone. He made her ‘‘beg for
a priest during a countdown when he had the gun to
[her] head, and [she] was crying and he was screaming
[that] she’s gonna die, you’re gonna kill her, you need
to get her a priest.’’ The defendant then tried to fire
the gun while holding Tyler by her hair. After the gun
jammed and a bullet popped out, the defendant again
attempted to fire the gun. Tyler raised her hand in self-
defense, and the defendant then struck her on the head,
causing her to fall to the ground. The blow left Tyler
dizzied, and she thought that the defendant had
‘‘cracked open’’ her head.
The defendant thereafter explained to Tyler that ‘‘this
was not going to end well’’ because the police were not
meeting his demands and did not appreciate that ‘‘he
was in control of the situation; he had this all planned;
he knew exactly what was going to happen . . . .’’ The
defendant then noticed on his surveillance monitors a
police robot approaching the house.6 This further upset
the defendant, who screamed at the negotiators to
remove the robot from the property. Infuriated, the
defendant smashed a table and began kicking and
throwing things. He then turned to Tyler and said,
‘‘[T]his is it, I’m done with you, we’re going down in
the bunker; this is it, it’s all over. It’s over for you and
this is over.’’ The defendant then dragged Tyler across
the room and toward the basement. Tyler resisted at
first, telling him ‘‘don’t make me go down there. I don’t
want to die down there.’’ The defendant then stated,
‘‘you get up and get down there or I’ll throw you down
the stairs’’ to the basement. She complied and, upon
reaching the basement, the defendant told her that he
was ‘‘going to blow the house from there.’’ He then
handcuffed her to an eyebolt on the wall farthest from
the door.
The defendant resumed his discussions with the
negotiators and appeared ‘‘worse than he had been the
entire day.’’ After screaming at them, he made Tyler
speak on the telephone. When he asked Tyler what the
negotiator was asking, Tyler replied that the negotiator
wanted to know if he had a gun. The defendant then
announced ‘‘yeah, I have a gun’’ and fired the weapon
at a wall. The gun was one foot from Tyler’s face when
the shot was fired.
The defendant continued to yell at negotiators about
the robot in the front yard and threatened to ‘‘blow the
house’’ if it wasn’t removed. He then screamed, ‘‘I’m
done, this is over,’’ and ran out of the basement. Tyler
heard the defendant’s steps pounding across the kitchen
floor above and realized that she had an opportunity
to flee. She managed to yank the eyebolt out of the
wall and ran to a door. She testified that she ‘‘stopped
at the door and . . . remember[ed] thinking is it going
to blow. I’m either going to die with a gun to my head
or I go out the door and I die or maybe I don’t. And I
opened the door and, I stood there for a minute [and
then] I ran across the yard.’’ A SWAT team member
came to her aid and removed her from the scene. At
that time, it was approximately 8:30 p.m.
The police then removed the robot from the property
and rescinded the order to shoot the defendant. They
repeatedly instructed the defendant to exit the house,
but he refused. At 9:30 p.m., the police fired fifteen to
twenty-five gas canisters into the house through a large
picture window. Those canisters contained nonflamma-
ble pepper spray, an irritant intended to flush the defen-
dant out of the house. The defendant nevertheless
remained in the house. At approximately 9:45 p.m., offi-
cers observed a blue and white flame coming from
the center of the roof of the house.7 Officer Matthew
Mainieri of the South Windsor Police Department testi-
fied that although he initially observed smoke, he ‘‘then
. . . observed flames rising above the roofline . . .
[and] was able to see flames higher than the peak of
the garage roof.’’ Mainieri found that to be unusual
because ‘‘[b]ased on [his] experience as a volunteer
firefighter, it generally takes some time for fires to get
that big.’’ After five minutes, the blue flames died down
to just a yellow flame and then turned to black smoke.
When the canisters were fired through the picture
window, they provided officers a view inside the house.
Five minutes after the initial fire subsided, officers wit-
nessed a person tossing an item on fire from the lower
right corner to the upper left corner of the window,
setting fire to the curtains inside. Approximately thirty
minutes later, the fire intensified, ultimately engulfing
the entire house over the course of two hours. At one
point, the defendant appeared at the basement door
and fired two rounds into the yard in the direction of
where a SWAT team was deployed. The officers dove
for cover, but did not return fire. The defendant then
retreated into the house.
After the roof of the house had collapsed, Mainieri
testified that ‘‘[e]ventually the basement area became
consumed with fire and at the last possible moment
[the defendant] crawled out the back door.’’ He then
proceeded across the yard with a gun raised to his
head. Officers ordered him to drop the weapon, but the
defendant refused and a standoff ensued. The police
fired a nonlethal round that struck the defendant’s arm,
causing him to drop the gun. They then applied a Taser8
on the defendant and attempted to handcuff him. When
he resisted, the police administered a ‘‘dry stun’’9 before
finally apprehending the defendant.
The defendant then was transported to a nearby hos-
pital, where the police seized, inter alia, certain articles
of clothing and ten .25 caliber bullets from him. Subse-
quent testing at the state forensic science laboratory
confirmed that ‘‘a petroleum product consistent with
gasoline’’ was present on the defendant’s shoe and
pants, and that a flammable ‘‘medium boiling range
petroleum distillate’’ that was not gasoline was present
on the defendant’s sock. The police also recovered an
operable .25 caliber Browning semiautomatic pistol
from the backyard of the house. The defendant did not
have a permit to possess that pistol. In addition, several
empty propane tanks were found inside the house and
one was found on an outdoor patio.
After being charged with the aforementioned crimes,
the defendant filed a notice of his intent to rely on the
defense of mental disease or defect. The case proceeded
to trial in the fall of 2011, at the conclusion of which
the jury rejected that defense and found him guilty on
all counts. The court rendered judgments of conviction
consistent with the jury’s verdicts and thereafter sen-
tenced the defendant to a total effective term of seventy
years incarceration. This appeal followed.
I
The defendant first claims that the court improperly
denied his motion for a bill of particulars. He argues
that the court’s refusal to do so impaired his ability to
prepare a double jeopardy defense. We disagree.
‘‘A motion for a bill of particulars is addressed to the
sound discretion of the trial court. . . . [A]n abuse of
discretion in the denial of a motion for a bill of particu-
lars can be premised only upon a clear and specific
showing of prejudice to the defense . . . . The defen-
dant has the burden of showing why the additional
particulars were necessary to the preparation of his
defense. . . . The sixth amendment to the United
States constitution and article first, § 8, of the Connecti-
cut constitution guarantee a criminal defendant the
right to be informed of the nature and cause of the
charges against him with sufficient precision to enable
him to meet them at trial. . . . [That] the offense
should be described with sufficient definiteness and
particularity to apprise the accused of the nature of the
charge so he can prepare to meet it at his trial . . .
are principles of constitutional law [that] are inveterate
and sacrosanct.’’ (Citations omitted; internal quotation
marks omitted.) State v. Vumback, 263 Conn. 215, 221–
22, 819 A.2d 250 (2003).
The following additional facts are relevant to this
claim. Weeks before trial commenced, the defendant
filed a motion for a bill of particulars that sought to
have the state identify the specific statutory conduct
that he was alleged to have committed and the specific
acts that allegedly constituted the commission thereof.
The state responded by filing long form informations
detailing the specific charges against the defendant.
The court heard argument on the defendant’s motion
on September 12, 2011. At that time, defense counsel
argued that the informations did not specify precisely
how the defendant committed the alleged statutory vio-
lations with respect to the charges of criminal violation
of a protective order in violation of § 53a-223, threaten-
ing in the second degree in violation of § 53a-62 (a) (1),
threatening in the second degree in violation of § 53a-
62 (a) (2), assault in the third degree in violation of
§ 53a-61 (a) (1), threatening in the first degree in viola-
tion of § 53a-61aa (a) (1) (A), interfering with an officer
in violation of § 53a-167a, attempt to commit assault of
public safety personnel in violation of §§ 53a-49 and
53a-167c, and arson in the first degree in violation of
§ 53a-111 (a) (4).
In response, the state’s attorney made an oral proffer
on the record with respect to the specific factual bases
underlying those charges. She stated in relevant part:
‘‘It’s disingenuous for counsel to claim that he doesn’t
understand the basis of the violation of the protective
order when his client kidnaps . . . Tyler at gunpoint,
puts her in the car, and drives her to the home . . .
on Tumblebrook [Drive] in South Windsor. Clearly, all
of that violates the protective order. It’s a protective
order where he is to have no contact with . . . Tyler.
Obviously, putting a gun to her head and kidnapping
her and putting her in a car would certainly violate the
protective order, and I think that counsel could figure
that out from the police reports.
‘‘With regard to the threatening counts, the threaten-
ing that deals with the physical assault; he hit her in
the head either with his hand or with the gun in order
to get her to go downstairs and threatened to throw
her down the stairs into the bunker area, or what they’re
describing as the bunker area of the home, when he
decided it was time for them to go to the bunker.
‘‘With regard to the verbal threatening, counsel is
aware of the negotiation tapes where he repeatedly
threatens to kill her, threatens to kill himself in front
of her, threatens to blow up the house, and threatens
to do various things to her of a violent nature.
‘‘With regard to the assault third, that would also be
hitting her in the head with either the gun or his hand.
I believe it was the gun.
‘‘With regard to the threatening first, the victims there
would be both the police and . . . Tyler. The defendant
indicates to police several times that he has put propane
pockets throughout the house, and that he has sixty-
five pounds of explosives in the house and intends to
blow up the house if the police don’t meet his demands;
that would be threatening in the first degree.
‘‘With regard to the interfering with officers, specifi-
cally, he interfered with . . . the three police negotia-
tors who were telling him to release [Tyler], let her go,
to come out with his hands up. He interfered with the
other officers, the SWAT team officers. When he did
come out of the house—finally when the house was
engulfed in flames, put the gun to his head, refused to
drop the gun, was hit with a foam bullet, dropped the
gun, bent down and picked it up again in violation of
police orders, continued to try to get away from the
police after [the police] knocked the gun out of his
hand I believe the second time, and he turned and began
to walk away from at least a dozen police officers who
had the house surrounded and were ordering him over
loud speakers and with their unassisted voices to stop,
to get down on the ground and to drop the weapon. . . .
‘‘With regard to . . . the attempted assault on the
police officer. . . . When the defendant came out, he
fired at the SWAT officers who were in the rear yard
attempting to take him into custody, causing the officers
to back up. This was witnessed by Officer Mainieri of
the South Windsor Police Department who saw the
officers retreat when the defendant came out and fired
the gun at those officers. I do not have the names of
those specific officers, nor do I believe that that is
necessary for counsel to defend this case. There were
SWAT officers surrounding this house, the defendant
came out, fired the gun, not up in the air, at the officers,
causing them to retreat further back into the woods in
back of the house in order to avoid being shot. . . .
‘‘With regard to the arson, Your Honor, I don’t believe
there’s anything that requires me to indicate or to prove
the exact location that he started the fire in the house.
It is the state’s contention he is the only one in the
house. Other means of [how] the fire started have been
ruled out by the fire marshal, he is the only one left in
the house. He indicated that he had propane pockets,
he indicated he had explosives, he had matches, [and]
he had Bic lighters throughout the house. He had ample
means to start the fire. It is not incumbent upon the
state to prove exactly where the fire was started in the
house.’’ Following that proffer by the state’s attorney,
the court denied the defendant’s motion for a bill of par-
ticulars.10
As our Supreme Court repeatedly has observed, ‘‘this
court has on numerous occasions adverted to sources
extrinsic to the specific count or information to deter-
mine whether the defendant was sufficiently apprised
of the offense charged’’ in reviewing the denial of a
motion for a bill of particulars. State v. Spigarolo, 210
Conn. 359, 384, 556 A.2d 112, cert. denied, 493 U.S. 933,
110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); see also State
v. Vumback, supra, 263 Conn. 228; State v. Kyles, 221
Conn. 643, 654, 607 A.2d 355 (1992). For example, in
State v. Beaulieu, 164 Conn. 620, 624, 325 A.2d 263(1973), the court permitted the state’s attorney, follow-
ing a motion by the defendant for a bill of particulars,
to ‘‘read into the record a detailed statement of the
facts claimed to constitute the crime charged . . . .’’
The court then denied the motion for a bill of particu-
lars. On appeal, our Supreme Court reasoned that when
‘‘a defendant is fairly informed of the charges against
him so that he may prepare a proper defense, a bill of
particulars is unnecessary and may properly be denied.’’
Id., 625. The court emphasized that the ‘‘information
[was] read into the record by the state’s attorney in
advance of the trial’’ in determining that the defendant
was ‘‘fairly apprised’’ of the precise charges against him.
Id., 625–26. In light of the foregoing, the court concluded
that the trial court did not abuse its discretion in denying
the defendant’s motion. Id., 626.
As in Beaulieu, the proffer by the state’s attorney in
the present case fairly apprised the defendant of the
facts claimed to constitute the charged offenses.
Defense counsel apparently agreed, stating at the con-
clusion of that proffer that ‘‘what [the state’s attorney]
just recited is what she should allege in the long form
information . . . .’’ The complaint lodged before the
trial court, then, assailed not so much the adequacy of
the state’s description, but rather the manner in which
it was memorialized. Indeed, his trial counsel concluded
his argument by stating that said description needed
to be provided ‘‘in writing’’ to the defendant. Defense
counsel provided no authority for that proposition
before the trial court, nor does his appellate counsel in
this appeal. That proposition is contrary to Connecticut
law. See State v. Beaulieu, supra, 164 Conn. 624–26
(court did not abuse discretion in denying bill of particu-
lars after state made oral proffer detailing facts on
which state would proceed); State v. Madagoski, 59
Conn. App. 394, 403–404, 757 A.2d 47 (2000) (court did
not abuse discretion in denying bill of particulars when
defendant had access to state’s disclosure that apprised
him of facts on which state would proceed), cert.
denied, 255 Conn. 924, 767 A.2d 100 (2001).
Furthermore, the defendant has not demonstrated,
as he must, that he was prejudiced by the court’s denial
of his motion for a bill of particulars. ‘‘[A] defendant
can gain nothing from the claim that the pleadings are
insufficient without showing that he was in fact preju-
diced in his defense on the merits and that substantial
injustice was done to him because of the language of
the information. . . . To establish prejudice, the defen-
dant must show that the information was necessary to
his defense, and not merely that the preparation of his
defense was made more burdensome or difficult by the
failure to provide the information.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
State v. Vumback, supra, 263 Conn. 227–28.
In this appeal, the defendant claims that ambiguities
in the informations and the state’s proffer hindered
his ability to prepare a double jeopardy defense. That
contention overlooks the fact that, in cases in which
‘‘the charging instrument . . . did not specify the par-
ticular acts for which the defendant was charged’’; State
v. Quint, 97 Conn. App. 72, 80 n.4, 904 A.2d 216, cert.
denied, 280 Conn. 924, 908 A.2d 1089 (2006); the courts
of this state must ‘‘resolve the ambiguity in the defen-
dant’s favor . . . for double jeopardy purposes and
assume that the charged offenses arose out of the same
act.’’ (Citation omitted; internal quotation marks omit-
ted.) Id. In such situations, any ambiguity inures to the
benefit of the defendant, as it establishes the first prong
of a double jeopardy analysis, which inquires as to
whether the charges must arise out of the same act or
transaction. See State v. Bernacki, 307 Conn. 1, 9, 52
A.3d 605 (2012), cert. denied, U.S. , 133 S. Ct.
1804, 185 L. Ed. 2d 811 (2013). Moreover, any ambiguity
in the acts alleged has no bearing on the second prong
of a double jeopardy analysis, which is ‘‘theoretical
in nature and not dependent on the actual evidence
adduced at trial.’’ Id., 21 n.16. That second prong entails
‘‘a technical analysis of the statutory elements,’’ rather
than a focus ‘‘on the facts of the case.’’ Id., 22 n.16. As
such, the resolution of any alleged ambiguity in facts
alleged in the informations and proffer by the state
was not necessary for the defendant to prepare such a
defense.11 We therefore cannot conclude that the court
improperly denied his motion for a bill of particulars.
II
The defendant next contends that certain convictions
violate the prohibition against double jeopardy. The
defendant did not preserve this claim at trial and now
seeks review pursuant to State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989). We review the defen-
dant’s claim because the record is adequate for review
and the claim is of constitutional magnitude. See State
v. Alvaro F., 291 Conn. 1, 5 n.8, 966 A.2d 712, cert.
denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d 140(2009).
‘‘[A] defendant’s double jeopardy claim presents a
question of law, over which our review is plenary.’’
State v. Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009).
The double jeopardy clause of the fifth amendment to
the United States constitution provides that no person
shall ‘‘be subject for the same offense to be twice put
in jeopardy of life or limb . . . .’’ That constitutional
provision is applicable to the states through the due
process clause of the fourteenth amendment. Benton
v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed.
2d 707 (1969). The double jeopardy prohibition ‘‘serves
three separate functions: (1) It protects against a second
prosecution for the same offense after acquittal . . .
[2] It protects against a second prosecution for the same
offense after conviction . . . [3] And it protects against
multiple punishments for the same offense [in a single
trial].’’ (Internal quotation marks omitted.) State v.
Crawford, 257 Conn. 769, 776, 778 A.2d 947 (2001), cert.
denied, 534 U.S. 1138, 122 S. Ct. 1086, 151 L. Ed. 2d 985(2002). The latter function is at issue in the present case.
‘‘Double jeopardy analysis in the context of a single
trial is a two-step process. 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. Multiple punishments are forbidden only if
both conditions are met.’’ (Internal quotation marks
omitted.) State v. Bernacki, supra, 307 Conn. 9. With
that standard in mind, we turn to the defendant’s spe-
cific claims.
A
The defendant argues that his convictions for interfer-
ing with an officer in violation of § 53a-167a and attempt
to commit assault of public safety personnel in violation
of §§ 53a-49 and 53a-167c violate his right against dou-
ble jeopardy. That claim fails because those charges
did not arise out of the same act or transaction.
In her oral proffer in response to the defendant’s
motion for a bill of particulars, the state’s attorney
averred that the interfering charge stemmed from the
defendant’s refusal to release Tyler from the house, his
noncompliance with the order to surrender his weapon
upon exiting the house, and his conduct in resisting
arrest. The state’s attorney also averred that the
attempted assault charge stemmed from an incident in
which the defendant fired gunshots in the direction of
SWAT team members outside the house. The evidence
adduced at trial12 substantiated those allegations and
indicated that, during his standoff with law enforcement
after Tyler escaped from the house, the defendant ‘‘fired
two rounds to the back of the yard in the vicinity’’ of
numerous officers and members of a SWAT team before
returning inside the house.
By contrast, the acts underlying the interfering charge
plainly transpired at distinct and different times than
the attempted assault. The defendant’s conduct in refus-
ing to comply with police instructions to release Tyler,
a fortiori, occurred prior to her escape from the house,
and thus before he fired gunshots at the officers outside.
Likewise, his refusal to drop his gun and to submit to
arrest upon exiting the house occurred well after he
fired on the officers and then retreated into the house.
We therefore cannot say that the charges for interfering
with an officer in violation of § 53a-167a and attempt
to commit assault of public safety personnel in violation
of §§ 53a-49 and 53a-167c arise out of the same act or
transaction. His claim thus fails under Golding’s
third prong.
B
The defendant also claims that his two convictions
for threatening in the second degree in violation of
§ 53a-62 (a) (1) and (2), respectively, violate his right
against double jeopardy. We disagree.
In her oral proffer, the state’s attorney alleged that the
violation of § 53a-62 (a) (1) arose from the defendant’s
physical threat to Tyler as he ordered her into the base-
ment. At trial, Tyler testified that the defendant struck
her on the head, knocking her to the ground and causing
her to believe that he had ‘‘cracked open [her] head.’’
Soon thereafter, the defendant dragged her toward the
basement. When she resisted, the defendant stated,
‘‘you get up and get down there or I’ll throw you down
the stairs.’’ In light of that testimony, the jury reasonably
could have concluded that the defendant placed Tyler
in fear of imminent serious physical injury by that physi-
cal threat.13
Conversely, the state’s attorney’s proffer indicated
that the alleged violation of § 53a-62 (a) (2), which she
described as ‘‘the verbal threatening’’ charge, arose
from the defendant’s repeated threats, made during his
negotiations with the police, that he would kill Tyler
and blow up the house. Those negotiations were distinct
from his conduct in forcing Tyler into the basement.
Accordingly, we conclude that the defendant’s two con-
victions for threatening in the second degree in violation
of § 53a-62 (a) (1) and (2) do not arise from the same
act or transaction.
In addition, the crimes set forth in § 53a-62 (a) (1)
and (2) do not constitute the same offense. To ascertain
whether two crimes constitute the same offense, we
engage in ‘‘a technical analysis of the statutory ele-
ments’’ and not the ‘‘facts of the case.’’ State v. Bernacki,
supra, 307 Conn. 22 n.16. Section 53a-62 (a) (1) provides
in relevant part that ‘‘[a] person is guilty of threatening
in the second degree when . . . [b]y physical threat,
such person intentionally places or attempts to place
another person in fear of imminent serious physical
injury . . . .’’ Section 53a-62 (a) (2) provides in relevant
part that ‘‘[a] person is guilty of threatening in the sec-
ond degree when . . . such person threatens to com-
mit any crime of violence with the intent to terrorize
another person . . . .’’
The plain language of § 53a-62 (a) (1) requires proof
of two elements not present in § 53a-62 (a) (2). First,
the state must establish that a defendant made a physi-
cal threat that placed another person in fear of physical
injury.14 Section 53a-62 (a) (2) contains no such require-
ment. Indeed, a defendant could violate that statute by
verbally threatening to blow up another person’s house
while they are out of town. Such an act neither contains
a physical threat against the person nor instills fear of
serious physical injury to that person.
Second, § 53a-62 (a) (1) contains a temporal require-
ment in that the threat communicated to another person
must place them in fear of imminent serious physical
injury. By contrast, § 53a-62 (a) (2) includes no such
limitation. See State v. Carter, 141 Conn. App. 377, 401,
61 A.3d 1103 (noting that imminence not requirement
in context of threat made pursuant to § 53a-62 [a] [2]),
cert. granted on other grounds, 308 Conn. 943, 66 A.3d
886 (2013). As a result, it is possible for a defendant to
violate § 53a-62 (a) (1) by intending to place another
person in fear of imminent serious physical injury with-
out also violating § 53a-62 (a) (2). We therefore reject
the defendant’s contention that he has been punished
twice for the same offense. His convictions for violating
§ 53a-62 (a) (1) and (2) do not run afoul of the prohibi-
tion against double jeopardy. Accordingly, the defen-
dant cannot prevail under Golding.
III
The defendant lastly alleges instructional error. He
claims that the court’s charge on the defense of mental
disease or defect15 misled the jury into believing that,
if acquitted on that basis, the defendant likely would
be released from confinement prematurely.16 We do
not agree.
‘‘[I]n evaluating a claim of instructional impropriety,
we must view the court’s jury instructions as a whole,
without focusing unduly on one isolated aspect of the
charge. . . . In determining whether a jury instruction
is improper, the charge . . . is not to be critically dis-
sected for the purpose of discovering possible inaccura-
cies of statement, but it is to be considered rather as
to its probable effect on the jury in guiding [it] to a
correct verdict in the case. . . . In addition, the defen-
dant bears the burden of demonstrating that it is reason-
ably possible that the jury was misled by the charge.’’
(Citations omitted; internal quotation marks omitted.)
State v. Carrion, 313 Conn. 823, 845, A.3d
(2014).
In its charge, the court instructed the jury on the
affirmative defense of mental disease or defect, detail-
ing the elements thereof and the defendant’s burden of
proof with respect thereto. The court then instructed
the jury on the consequences of such an acquittal.17 It
stated: ‘‘I must also inform you of the consequences
for the defendant if he is found not guilty by reason of
lack of capacity due to mental disease or defect, and
of the applicable confinement and release provisions
of the law. A defendant who has been found not guilty
by reason of lack of capacity due to mental disease or
defect is referred to as an acquittee.
‘‘The confinement provision requires the court to
commit the acquittee to the Commissioner of Mental
Health and Addiction Services for temporary confine-
ment in a state hospital for an examination to determine
his mental condition. Within forty-five days of the order
of commitment, the superintendent of that hospital
must file a report concerning the mental condition of
the acquittee with the court.
‘‘After receipt of this report, either party will have
an opportunity to have another examination of the
acquittee. The court will conduct a hearing to determine
the mental condition of the acquittee with the primary
concern being the protection of society. After the court
hears the evidence, the court will determine if the
acquittee should be confined, conditionally released,
or discharged. A finding that the acquittee should be
confined or conditionally released will result in an order
committing the acquittee to the Psychiatric Security
Review Board for confinement in a state mental institu-
tion for custody, care, and treatment pending a hearing
by the Psychiatric Security Review Board within ninety
days of the order.
‘‘This court shall fix a maximum period of confine-
ment authorized for the crime for which he was found
not guilty by reason of lack of capacity due to mental
disease or defect. If the court determines that a condi-
tional release is warranted, the court shall so recom-
mend to the Psychiatric Security Review Board.
‘‘However, if the evidence indicates that the defen-
dant is not a threat to himself or others, and that the
protection of society would not be adversely effected
by his release, the court may discharge the acquittee
from further custody.
‘‘If there are changes in the acquittee’s condition from
the first report, the court will hold another hearing to
determine whether to continue the acquittee’s commit-
ment, to conditionally release him or to discharge him.
The law provides that if the acquittee is again confined
to a state hospital, the Psychiatric Security Review
Board retains jurisdiction over him, and during his
period of confinement the superintendent of the state
hospital will have to report to the board at least every
six months as to his condition.
‘‘If conditions change, the board could, on its own,
conditionally release him or recommend to the court
that he be released unconditionally. The court, during
the course of any commitment of a person found not
guilty by reason of lack of capacity due to mental dis-
ease or defect, always maintains supervision of that
person. At any time the superintendent of the mental
hospital may recommend to the board that the acquittee
be released. This will result in a hearing before a judge.
‘‘In summary, the law provides that there be an initial
commitment and hearing, and, depending on the evi-
dence presented, the acquittee will either be discharged
or committed. If the acquittee is committed, this deci-
sion will be reviewed after ninety days and every six
months after that, as the intention is to hold someone
only until such point as he is no longer a danger to
himself or others and that society is, in fact, protected.
‘‘Now, that concludes the court’s instruction with
reference to the defense of mental disease or defect.
It applies to each of the charges presented, and must
be considered during the deliberation for each spe-
cific charge.’’
General Statutes § 54-89a mandates the inclusion of
such a charge on the consequences of an acquittal due
to mental disease or defect. It provides: ‘‘If the court
instructs the jury on a defense of mental disease or
defect raised pursuant to section 53a-13, it shall, unless
the defendant affirmatively objects, inform the jury of
the consequences for the defendant if he is found not
guilty by reason of mental disease or defect and of the
confinement and release provisions of sections 17a-580
to 17a-602, inclusive, applicable to a person found not
guilty by reason of mental disease or defect.’’18 General
Statutes § 54-89a.
Our Supreme Court has explained that ‘‘[a]t common
law, the matter of punishment was not an issue for the
jury but for the court, and therefore not an appropriate
subject for the jury’s consideration or for the court’s
instruction to the jury. . . . Section 54-89a, enacted
in derogation of this common law principle, is to be
construed narrowly in order to leave undisturbed those
aspects of the common law not directly affected by the
statute. . . . Section 54-89a requires only that the court
inform the jury of the consequences that may follow a
verdict rendered after a successful insanity defense. It
does not nullify the general rule that a jury base [its]
verdict solely on the evidence before it. A narrow con-
struction of § 54-89a comports with this general rule
by ensuring that the jury possesses information that
enables it to reach a determination based on the evi-
dence, yet remains unaffected by sympathy, fear or
other inappropriate and irrelevant concerns.’’ (Citations
omitted; emphasis omitted.) State v. Wood, 208 Conn.
125, 144, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109
S. Ct. 235, 102 L. Ed. 2d 225 (1988).
The court’s charge on the consequences of an acquit-
tal due to mental disease or defect furthered that aim,
providing proper guidance as to the confinement and
release provisions applicable to such acquittees. See
State v. Cole, 50 Conn. App. 312, 327, 718 A.2d 457(1998) (‘‘the effect of the court’s instructions [pursuant
to § 54-89a] was to inform the jury of the consequences
of a successful insanity defense’’), aff’d, 254 Conn. 88,
755 A.2d 202 (2000). The charge was identical to the
model jury instruction provided by the Judicial Branch
website. See Connecticut Criminal Jury Instructions
§ 2.9-2 (4th Ed. 2007), available at http://www.jud.ct.-
gov/JI/criminal/part2/2.9-2.htm (last visited November
28, 2014). As our Supreme Court has noted, ‘‘[w]hile
not dispositive of the adequacy of the jury instruction,
an instruction’s uniformity with the model instructions
is a relevant and persuasive factor in our analysis.’’
(Internal quotation marks omitted.) State v. Ebron, 292
Conn. 656, 688 n.27, 975 A.2d 17 (2009), overruled in
part on other grounds by State v. Kitchens, 299 Conn.
447, 472–73, 10 A.3d 942 (2011); see also State v. San-
chez, 84 Conn. App. 583, 592 n.10, 854 A.2d 778, cert.
denied, 271 Conn. 929, 859 A.2d 585 (2004).
The defendant nonetheless argues that the court’s
instruction improperly identified specific time frames
for an acquittee’s initial confinement. Inclusion of those
time frames, he argues, ‘‘gave [the jury] the impression
of a likelihood of release’’ if it returned a verdict of not
guilty by reason of mental disease or defect, particularly
in light of the state’s rebuttal of that defense. The defen-
dant claims that the court could have alleviated that
impropriety by ‘‘omitting the time periods and informing
the jury that if, at the end of the term of commitment,
he remained a threat to himself or others and the protec-
tion of society would be adversely affected by his
release, the defendant would . . . remain committed.’’
For three reasons, that argument is unconvincing.
First, one of the dictates of § 54-89a is that the court
instruct the jury ‘‘of the confinement and release provi-
sions . . . applicable to a person found not guilty by
reason of mental disease or defect.’’ Inclusion of the
specified time periods in the court’s charge comports
with that requirement, and the defendant has provided
this court with no authority—nor are we aware of any—
proscribing the inclusion thereof.
Second, a review of the record indicates that the
state, in rebutting the defendant’s affirmative defense
of mental disease or defect, did not argue that the defen-
dant would be released prematurely if acquitted on that
basis. Rather, the state argued that the jury should reject
that defense because the evidence submitted at trial
showed that the defendant suffered from no mental
disease or defect and had a history of fabricating such
illness. For example, the state introduced evidence that
the defendant voluntarily admitted himself to Manches-
ter Memorial Hospital in the midst of the dissolution
proceeding in March, 2008, when he allegedly was con-
templating suicide. The next morning, the defendant
informed hospital staff that he was not suicidal, and he
displayed no suicidal symptoms whatsoever. He then
was discharged from the hospital after informing hospi-
tal staff that his admission was simply a ploy to avoid
a court hearing the following day. The state likewise
introduced into evidence a recording of a telephone
call the defendant placed to a friend from MacDougall-
Walker Correctional Institution on January 30, 2010.19
In that call made approximately six months after his
arrest, the defendant stated that his attorney advised
him that the state likely would accept his plea of not
guilty by reason of insanity. He referred to that defense
as a ‘‘temporary insanity thing.’’ When asked whether
that plea would result in any punishment, the defendant
replied, ‘‘Well they’ll send me to Whiting [Forensic Divi-
sion of Connecticut Valley Hospital] for evaluation to
see if I’m a danger to society, but [my attorney] says
I’ll be out in six to nine months, [my] psychiatrist says
the same thing.’’ Later in the call, the defendant mar-
veled at the fact that, if his plea was accepted and he
subsequently was released into society, his criminal
record allegedly would be expunged completely.
Such evidence was offered to rebut the defendant’s
claim, as articulated during his closing argument, that
he suffered from ‘‘various mental disorders’’ that caused
a ‘‘psychotic break with reality’’ and his ‘‘insane con-
duct’’ on July 7, 2009. Put differently, the state’s rebuttal
sought to demonstrate that the elements of the affirma-
tive defense were not satisfied. For that reason, the
state’s attorney argued that the defendant ‘‘was an angry
man and not an insane man on the date in question,’’
and that ‘‘there’s absolutely no credible evidence he
was in a psychotic state’’ at that time. She argued that
the defendant deliberately was ‘‘playing the mental ill-
ness card once again in order to get out of criminal
responsibility for these charges,’’ and submitted that
‘‘that’s what he’s counting on ladies and gentlemen, that
he puts on this act for you, that you buy it and off he
goes to Whiting and then makes a miraculous recovery
like he did at Manchester Memorial Hospital; don’t buy
his act ladies and gentlemen.’’ In so doing, the state
merely reminded the jury that an acquittee likely will
not remain committed if the acquittee no longer suffers
from any mental disease or illness. That sentiment is
consistent with the applicable provisions of the General
Statutes, as well as the court’s charge to the jury on
the consequences of an acquittal.
Third, and most significantly, the charge emphasized
to the jury that ‘‘[t]he court, during the course of any
commitment of a person found not guilty by reason of
lack of capacity due to mental illness or defect, always
maintains supervision of that person.’’ (Emphasis
added.) The court also apprised the jury that the ‘‘inten-
tion’’ of an acquittee’s confinement is to ensure ‘‘that
society is, in fact, protected,’’ and that the court’s super-
vision over an acquittee continues ‘‘until such point’’
as that interest is secured in the event of an acquittee’s
release. Those instructions properly conveyed to the
jury the fact that, if the defendant suffered from a mental
disease or defect and was acquitted, he would not be
released until he no longer was a threat to society. They
likewise indicated that, if the defendant did not truly
suffer from such a disease, he may not remain commit-
ted. As such, the charge complied with the dictates of
§ 54-89a.
Viewed as a whole, we conclude that it was not rea-
sonably possible that the jury was misled into believing
that the defendant, if acquitted due to mental disease
or defect, would be released from confinement prema-
turely. He therefore has not sustained his burden of
establishing instructional error.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The protective order prohibited the defendant from, inter alia, possessing
any firearms, from imposing any restraint upon Tyler, from threatening or
assaulting her, from coming within 100 yards of her, or from ‘‘having any
contact in any manner’’ with her.
2
Chief Tyler bore no relation to the victim, Nancy Tyler. He passed away
shortly before the defendant’s trial.
3
Reed testified that the Capital Region Emergency Services Team was
comprised of officers from many of the Hartford region police departments
and constituted South Windsor’s ‘‘critical incident response team, our tacti-
cal team, our SWAT team, our crisis negotiators, and our police dive team.’’
4
Prior to their divorce, the defendant claimed to be terminally ill with
cancer. Tyler became suspicious about that allegation when ‘‘there were no
doctor visits, there was no report. I continually asked can I go with you,
can I help you. . . . He always refused . . . and then after that he had
several other bouts of illnesses that appeared not to be real.’’ The defendant
never produced any evidence whatsoever to Tyler indicating that he had
cancer.
5
Tyler testified that she did not know what a propane pocket was and
that the defendant informed her that it was an area that ‘‘will burn or it will
explode if anybody breaches it.’’
6
The robot was deployed by the police in an effort to deliver a ‘‘throw
phone’’ to the defendant to maintain a line of communication and alleviate
concerns about poor cell phone coverage.
7
At trial, Jack Hubball, a chemist at the state forensic science laboratory,
testified that flames produced by burning propane are blue in color.
8
‘‘A Taser is a type of controlled electronic weapon capable of firing
wires tipped with a pair of barbed darts to deliver a paralyzing electric
charge.’’ State v. Daniel G., 147 Conn. App. 523, 573 n.11, 84 A.3d 9 (McDon-
ald, J., concurring in part and dissenting in part), cert. denied, 311 Conn.
931, 87 A.3d 579 (2014).
9
Mainieri testified that a dry stun is administered by placing a Taser on
‘‘somebody’s skin and [making] direct contact with the device directly to
their skin or their body . . . .’’
10
The defendant renewed his objection in his subsequent motion for a
new trial, arguing in relevant part that the informations ‘‘were unbelievably
vague and unbelievably incomplete and did not give fair notice as to what,
specifically, with respect to when, where and how the defendant violated
this specific statute . . . .’’ The court denied that motion.
11
To be clear, we perceive no such ambiguities, as discussed more fully
in part II of this opinion.
12
In analyzing whether certain charges arise out of the same act or transac-
tion, our Supreme Court repeatedly has examined the evidence submitted
at trial. See, e.g., State v. Brown, 299 Conn. 640, 653–54, 11 A.3d 663 (2011);
State v. Kulmac, 230 Conn. 43, 67–69, 644 A.2d 887 (1994).
13
We note that the defendant in this appeal does not challenge the suffi-
ciency of the evidence with respect to any of his convictions.
14
As the model jury instruction for § 53a-62 (a) (1) from the Judicial
Branch website explains: ‘‘A threat is the expression of an intention to injure
another person. A physical threat is a threat accompanied by some action,
such as words accompanied by a threatening gesture. A physical threat may
also occur if the defendant expresses the threat in the person’s presence
and has the apparent ability to carry out (his/her) threat. Mere words are
insufficient to constitute a physical threat; the defendant must also indicate
by (his/her) actions an intent or an ability physically to carry out that threat.
The conduct of a person, even without words, may be sufficient to cause
fear in another person.’’ Connecticut Criminal Jury Instructions § 6.2-3 (4th
Ed. 2009), available at http://www.jud.ct.gov/JI/criminal/part6/6.2-3.htm (last
visited November 28, 2014).
15
General Statutes § 53a-13 (a) provides: ‘‘In any prosecution for an
offense, it shall be an affirmative defense that the defendant, at the time
he committed the proscribed act or acts, lacked substantial capacity, as a
result of mental disease or defect, either to appreciate the wrongfulness of
his conduct or to control his conduct within the requirements of the law.’’
16
This claim is properly preserved for review, as the defendant requested
an alternate instruction during the charging conference, and thereafter
memorialized his objection after the court completed its charge to the jury.
17
The defendant does not challenge the court’s instructions with respect
to the affirmative defense of mental disease or defect. Rather, his claim
pertains to the portion of the charge instructing the jury on the consequences
of an acquittal on that basis.
18
Although the defendant objected to the court’s charge, he does not
dispute that the court retained discretion in such instances to overrule the
objection and to deliver a charge consistent with the dictates of § 54-89a.
At oral argument before this court, his counsel clarified that the defendant
was not claiming that the trial court violated that statute, but rather that
the inclusion of this instruction misled the jury.
19
The January 30, 2010 telephone call was played for the jury at trial.