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In Bailey, the court determined that the defendant's claim of a deprivation of her right to a unanimous verdict on her self-defense claim did not implicate a fundamental constitutional right.Summary of this case from State v. Chace
Convicted of the crimes of assault in the first degree and of carrying a pistol without a permit, both in connection with an incident in which she shot the husband of a friend, the defendant appealed. She claimed, inter alia, that the trial court erred in not instructing the jurors that they had to agree unanimously upon the way in which the state had disproved her claim of self-defense. She further claimed that the trial court erred in not instructing the jury that she had no duty to retreat from a confrontation if she was, as she claimed to have been, a "dweller" in the apartment where the shooting had occurred. Held: 1. Under the circumstances here, the defendant's claim of error, raised for the first time on appeal, challenging the trial court's failure to give a unanimity charge on the issue of self-defense was not one of constitutional proportions; however, even if that claim were to be reviewed under the doctrine of State v. Evans ( 165 Conn. 61), the alleged error would not be grounds for reversal, the instructions actually given having adequately conveyed to the jurors the understanding that their verdict had to be unanimous. 2. The defendant having produced sufficient evidence to raise the issue of the "dweller" exception to the rule requiring an individual to retreat, if possible, before using deadly physical force in self defense, the trial court should have instructed the jury on that exception; that error was, nevertheless, harmless because the jurors impliedly concluded that the defendant was not in her own dwelling at the time of the incident, they having returned a guilty verdict on the charge of carrying a pistol without a permit, with respect to which the trial court had instructed them that justification would have existed had the defendant been in her own dwelling. 3. There was no merit to the defendant's claim that she had a right to a self-defense instruction on the charge of carrying a pistol without a permit. 4. The defendant's claim to the contrary notwithstanding, the evidence presented was sufficient to support her conviction of carrying a pistol without a permit. Definition of dwelling, discussed. Whether a defendant is entitled to have inconsistent verdicts returned by a jury, discussed.
Argued October 13, 1988
Decision released December 13, 1988
Information charging the defendant with the crimes of assault in the first degree and carrying a pistol without a permit, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before Maiocco, J.; verdict and judgment of guilty, from which the defendant appealed. No error.
The appellant filed a motion for reargument which was denied.
Joette Katz, public defender, with whom, on the brief, was G. Douglas Nash, assistant public defender, for the appellant (defendant).
Frederick W. Fawcett, assistant state's attorney, with whom, on the brief, were Donald A. Browne, state's attorney, and Richard F. Jacobson and Henry J. Lyons, assistant state's attorneys, for the appellee (state).
The defendant, Janet Bailey, was charged with the crimes of assault in the first degree in violation of General Statutes 53a-59 (a)(1) and carrying a pistol without a permit in violation of General Statutes 29-35 and 29-37 (b), in connection with the January 25, 1986 shooting of Jeffrey Daniels. A six member jury found the defendant guilty on both charges. On January 30, 1987, she received concurrent sentences totalling five years imprisonment. She appeals from the judgment of conviction, claiming error in the trial court's instructions to the jury on both charges and error in the court's failure to grant a judgment of acquittal on the pistol carrying charge. We find no reversible error.
"[General Statutes] Sec. 53a-59. ASSAULT IN THE FIRST DEGREE: CLASS B FELONY. (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument. . . . "
At the time of the crime, General Statutes 29-35 provided: "No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. The provisions of this section shall not apply to the carrying of any pistol or revolver by any sheriff, parole officer or peace officer of this state, or sheriff, parole officer or peace officer of any other state while engaged in the pursuit of his official duties, or federal marshal or federal law enforcement agent, or to any member of the armed forces of the United States, as defined by section 27-103, or of this state, as defined by section 27-2; when on duty or going to or from duty, or to any member of any military organization when on parade or when going to or from any place of assembly, or to the transportation of pistols or revolvers as merchandise, or to any person carrying any pistol or revolver while contained in the package in which it was originally wrapped at the time of sale and while carrying the same from the place of sale to the purchaser's residence or place of business, or to any person removing his household goods or effects from one place to another, or to any person while carrying any such pistol or revolver from his place of residence or business to a place or person where or by whom such pistol or revolver is to be repaired or while returning to his place of residence or business after the same has been repaired, or to any person carrying a pistol or revolver in or through the state for the purpose of taking part in competitions or attending any meeting or exhibition of an organized collectors' group if such person is a bona fide resident of the United States having a permit or license to carry any firearm issued by the authority of any other state or subdivision of the United States, or to any person carrying a pistol or revolver to and from a testing range at the request of the issuing authority, or to any person carrying an antique pistol or revolver, as defined in section 29-33." At the time of the crime, General Statutes, 29-37 (b) provided: "Any person violating any provision of section 29-35 may be fined not more than one thousand dollars and shall be imprisoned not less than one year nor more than five years, and, in the absence of any mitigating circumstances as determined by the court, one year of the sentence imposed may not be suspended or reduced by the court. The court shall specifically state the mitigating circumstances, or the absence thereof, in writing for the record. Any pistol or revolver found in the possession of any person in violation of any provision of section 29-35 shall be forfeited." In 1988, the legislature incorporated 29-37 into 29-35 and made other amendments not germane to the present case. Public Acts 1988, No. 88-128.
Many of the critical facts in this case are disputed. Jeffrey Daniels and his wife, Penny Daniels, were married in 1984. They lived with their son, born prior to the marriage in 1982, at 29 New Era Court in Bridgeport. Jeffrey Daniels testified that during his marriage he had struck his wife, but claimed that he had done so in self-defense. Penny testified that Jeffrey had threatened and beaten her on several occasions. She stated that she had twice called police because her husband had beaten her, but on both occasions had declined to press charges.
The defendant had been friends with Penny since high school, and often visited her at the New Era Court apartment. Jeffrey testified that about one week after their marriage, he returned home to discover Penny and the defendant kissing and embracing on the couch. Jeffrey told his wife that he did not want the defendant in their home again, and warned her that he would take their son and move out if he ever again found Penny and the defendant in an amorous position. Penny testified that she had never been amorous with the defendant and claimed that Jeffrey did not like the defendant because he was worried about his reputation with his friends, who thought the defendant looked like a lesbian.
Jeffrey testified to the following version of events leading to the January 25, 1986 incident. At the time, he was living at the New Era Court apartment. On the previous day, he had returned home from work at about 2 p.m. and had found no one there. He changed clothes and went to his mother's home.
At 5 a.m. on January 25, 1986, he telephoned Penny to tell her he was coming over. Upon arriving at New Era Court, Jeffrey discovered that the apartment locks had been changed. He knocked on the front door but received no response. He went to a telephone booth and called Penny, but there was no answer. He then returned to the apartment and, after again knocking with no response, entered the apartment through an open kitchen window. Jeffrey proceeded up the stairs and observed the bedroom door being closed. He forced the door open, entered the room and saw the defendant on top of the bed covers and Penny and his son under the covers. All three were naked. Jeffrey went to the bed to get his son. Penny and the defendant attacked him, and as he fought back, the defendant left the bed and went to a corner of the room. During this time, Jeffrey had taken the telephone away from Penny as she attempted to hit him with it. The defendant then returned to the bed. As Jeffrey turned and looked at her from a distance of approximately ten feet, the defendant shot him. Jeffrey then ran from the apartment to his car.
The defendant and Penny offered the following version of events. Penny testified that Jeffrey had ceased to live with her on a regular basis three to four weeks prior to the shooting. Penny had changed the locks on the apartment two to three weeks before the incident, and Jeffrey did not have a key. Upon Penny's invitation, the defendant had moved in with her three to seven days before the shooting.
The thrust of the defendant's and Penny's testimony concerning the shooting was that the defendant had acted in self-defense. Penny testified that on the day of the incident, Jeffrey phoned her between 3 and 3:30 a.m. and asked if he could come over. Penny refused his request. A short while later, she heard a knock on the front door and saw Jeffrey, but did not admit him. Penny then received a telephone call from her sister. She heard a clicking sound during the conversation with her sister, indicating that someone was attempting to call her. She assumed the call was from Jeffrey and did not answer it.
Shortly thereafter, as she and the defendant were watching television in an upstairs bedroom, Penny heard noises from downstairs and saw Jeffrey coming up the stairs. Penny's son was sleeping in the bedroom. Penny was partially clothed and the defendant was fully dressed. The defendant attempted to shut the door, but Jeffrey pushed it open and began to punch her and threaten to kill her. Penny, who still was speaking on the telephone, told her sister to call the police. Jeffrey then attacked Penny, hitting her with his fist and with the telephone. The defendant attempted to leave the room but Jeffrey pushed her and then beat her with his fist and the telephone. He then removed his jacket and advanced toward Penny, exclaiming that he intended to "fuck you bitches up." The defendant left the bed to retrieve her jacket from a nearby chair. Jeffrey again attacked the defendant, but she was able to remove a handgun from her jacket pocket. Seeing the gun, Jeffrey told the defendant that she would have to kill him or shoot him. The defendant then shot Jeffrey as he advanced on her. Jeffrey grabbed his stomach and fled the room. Penny never saw the gun, but assumed that the defendant had taken it from her jacket.
The defendant left the scene, telephoned her sister and asked her to have the defendant's brother-in-law, a police officer, meet her. The defendant then went to the police station accompanied by her brother-in-law. At the police station, the defendant was interviewed by two police officers. Both officers testified that the defendant had bruises, small cuts on her hand and forehead, a lump on her forehead, and a chipped tooth. One of the officers also interviewed Penny and observed a lump on her forehead. Photographs of both the defendant and Penny taken after the shooting were admitted into evidence.
Officers who observed the scene of the incident testified that the telephone in the bedroom was broken but that there was no sign of a struggle and no blood. Shortly after the incident, the defendant gave a voluntary statement to one of the investigating officers. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In her statement, the defendant gave her address as 134 Marina Village in Bridgeport, the home of her mother.
On appeal, the defendant claims that the trial court erred in (1) failing to instruct the jury that it had to agree unanimously upon which of the alternative ways the state had disproven the defendant's claim of self-defense, (2) failing to instruct the jury that the defendant had no duty to retreat from the confrontation if she was a "dweller" at 29 New Era Court, (3) failing to instruct the jury that self-defense is a defense to the pistol carrying charge, and (4) failing to grant the defendant's motions for judgment of acquittal on the pistol carrying charge. We find no reversible error.
The defendant first claims that the trial court violated her constitutional right to a unanimous jury verdict by failing to instruct the jury that it had to agree on which of the alternative ways the state had disproven her self-defense claim. There is no indication in the record that the defendant either submitted a request to charge on this issue, or took exception immediately after the charge was given. Because this claim was not properly preserved for appeal, this court is not bound to consider it. Practice Book 852, 4185; State v. Butler, 207 Conn. 619, 629, 541 A.2d 865 (1988); State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988).
"[Practice Book] Sec. 852. NECESSITY FOR REQUESTS TO CHARGE AND EXCEPTIONS "The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury." "[Practice Book] Sec. 4185. ERRORS CONSIDERED "The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interests of justice notice plain error not brought to the attention of the trial court. "In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge's adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same"
The defendant suggests, however, that her claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 526 (1973), because it implicates fundamental due process rights. Evans "permits review of an unpreserved claim where the record adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial." State v. Butler, supra, 629; State v. Gonzalez, 205 Conn. 673, 685, 535 A.2d 345 (1987); State v. Robinson, 204 Conn. 207, 210 n. 4, 527 A.2d 694 (1987); State v. Miller, 186 Conn. 654, 659, 443 A.2d 906 (1982). Accordingly, before addressing the merits of the claim, we must determine whether the defendant has been deprived of a fundamental constitutional right.
Review under State v. Evans, 165 Conn. 61, 327 A.2d 526 (1973), involves four discrete questions. "`First, does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right? This question looks solely to whether the label which the defendant places on the claim is constitutional in nature. "`Second, is the defendant's constitutional claim adequately supported by the record? This question requires that we review the record in a limited way and determine, on the basis of that limited review, whether the defendant's claim is truly of constitutional proportions or is simply characterized as such by the defendant. In those instances in which the Supreme Court . . . has already clearly indicated that the particular claim is or is not of constitutional proportions and therefore reviewable or not reviewable, a summary "yes" or "no" answer may be sufficient. "`Third, "was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant?" State v. Newton, [ 8 Conn. App. 528, 531, 513 A.2d 1261 (1986)]. This question requires that weekly review the defendant's claim to determine whether a fundamental constitutional right of his was violated. "`Fourth, "did the deprivation deny the defendant a fair trial, thereby requiring" that his conviction be set aside. Id. This question requires that we determine, under appropriate standards of harmless error or other similar doctrines, whether the error requires reversal.' (Emphasis in original.) State v. Thurman, 10 Conn. App. 302, 306-307, 523 A.2d 891 (1987)." State v. Huff 10 Conn. App. 330, 334, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987); see also State v. Torrence, 196 Conn. 430, 434-36, 493 A.2d 865 (1985).
The defendant argues that the trial court's instruction that the state must disprove justification beyond a reasonable doubt did not convey to the jury the understanding that they must agree unanimously on the particular provision of the self-defense statute by which the state had refuted her claim. The trial court's charge on self-defense was based on General Statutes 53a-19. The court instructed the jury that the defendant would not have been justified in using deadly physical force unless she reasonably believed that the victim, Jeffrey Daniels, was either using or about to use deadly physical force, or was inflicting or about to inflict great bodily harm, on the defendant or Penny Daniels. The court then charged the jury that the justification of self-defense would not apply if the defendant: (1) could have avoided the necessity of using force by retreating to a position of complete safety; or (2) provoked the victim's use of physical force; or (3) committed the initial aggression and did not withdraw from the encounter and effectively communicate to the victim her intent to withdraw. The court admonished the jury that the state had the burden of proving beyond a reasonable doubt that the defendant's conduct was unjustified. Elsewhere in the charge, the court instructed the jury that its verdict must be unanimous.
"[General Statutes] Sec. 53a-19. USE OF PHYSICAL FORCE IN DEFENSE OF PERSON. (a) Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm. "(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform. "(c) Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law."
The defendant asserts that, under this charge, some jurors could have rejected the self-defense claim by concluding that the defendant's perception of the victim's use or threat of force was unreasonable; others could have found that the defendant should have retreated; others, that the defendant provoked the victim; and others, that the defendant was the aggressor and did not effectively withdraw from the encounter. She avers that such a scenario would have allowed the jury to believe that it had reached a unanimous verdict on self-defense despite differing as to how the defendant's conduct was unjustified.
We disagree with the defendant's contention that her first claim is reviewable under Evans. It is true that the constitution requires a unanimous verdict from a six member jury to support a conviction for a nonpetty offense. Burch v. Louisiana, 441 U.S. 130, 138, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979); State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986); see Practice Book 867. In appropriate cases, a claim of error in the trial court's charge on unanimity "will be reviewed even if no request to charge was submitted and no exception to the charge was taken. State v. West, 3 Conn. App. 650, 654, 491 A.2d 428, cert. denied, 196 Conn. 810, 497 A.2d 906 (1985)." State v. Benite, supra; see also State v. Golding, 14 Conn. App. 272, 279, 541 A.2d 509, cert. granted, 209 Conn. 801, 548 A.2d 442 (1988); State v. Jackson, 13 Conn. App. 288, 294, 535 A.2d 1327 (1988). We are not persuaded, however, that the defendant's claim of a deprivation of her right to a unanimous jury verdict on her self-defense claim implicates a fundamental constitutional right.
"[Practice Book] Sec. 867. — RETURN OF VERDICT "The verdict shall be general, but if the judicial authority instructs the jury regarding the defense of mental disease or defect, the jury, if they so find, shall declare the finding in their verdict. The verdict shall be unanimous and shall be announced by the jury in open court. If there are two or more defendants, the jury may return a verdict with respect to any defendant as to whom they agree. The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein, if the attempt is an offense."
State v. Quintana, 209 Conn. 34, 50-51, 547 A.2d 534 (1988), is not to the contrary. In Quintana, the defendant similarly argued that the trial court's instructions allowed the jury to reject self-defense without agreeing on the alternative means in issue. Id., 49. We rejected this claim, observing that the verdict suggested that the jury did in fact agree on what the defendant had actually done. Id., 50. We stated: "[T]he focal point of contention in the defendant's asserted self-defense claim was not the manner in which the defendant's use of force had been unjustified. Rather, the jury's determination of this issue involved, again, a question of credibility [of the witnesses]." Id., 49. We held that, even if the trial court's failure to give a specific unanimity charge was error; id.; "the jury was free to reject the testimony regarding self-defense . . . ." Id., 51. Because we concluded that the trial court had not erred in not giving a specific unanimity charge, our application of a constitutional standard for determining whether the court's instructions constituted harmful error was not compelled. Moreover, Quintana did not involve a claim for review under State v. Evans, 165 Conn. 61, 327 A.2d 526 (1973).
In making this claim, the defendant relies heavily on United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977), and a series of Connecticut Appellate Court cases. See State v. Jackson, supra; State v. Edwards, 10 Conn. App. 503, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987); State v. Benite, supra. In each of these cases, the state alleged arguably alternative means by which the defendant could have committed the crime. The defendant in each case claimed that, because the trial court did not instruct the jury that it must unanimously agree on the factual theory of the offense, the jury could have disagreed on what the defendant had actually done, yet could have collectively concluded that the defendant was guilty of the crime. See United States v. Gipson, supra, 455-56 (under statute, receiving or selling stolen vehicle alternative means to commit crime); State v. Jackson, supra, 294 (sale or dispensation of drugs); State v. Edwards, supra, 511 (unlawful entering or remaining on premises to commit burglary); State v. Benite, supra, 675 (burglary done while lethally armed or by inflicting bodily injury alternative means to commit burglary in first degree). State v. Flynn, 14 Conn. App. 10, 36-37, 539 A.2d 1005, cert. denied, ___ U.S. ___, 109 S.Ct. 226 102 L.Ed.2d 217 (1988), succinctly summarizes the teaching of these decisions. "Where a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act. State v. Benite, supra, 674-75." (Emphasis in original.) Id., 38.
In essence, the unanimity requirement as enunciated in Gipson and its progeny requires the jury to agree on the factual basis of the offense. The rationale underlying the requirement is that a jury cannot be deemed to be unanimous if it applies inconsistent factual conclusions to alternative theories of criminal liability. See United States v. Gipson, supra, 458 and n. 8; cf. State v. Jones, 193 Conn. 70, 75-77, 475 A.2d 1087 (1984) (indictment charged that defendant committed or attempted to commit robbery; specific unanimity charge not required); State v. Flynn, supra, 36-37 (assault on peace officer by injuring him during his performance of duty or by hurling object at him; specific unanimity charge not required); State v. Lo Sacco, 11 Conn. App. 24, 33, 525 A.2d 977, cert. denied, 204 Conn. 812, 528 A.2d 1158 (1987) (three ways of committing disorderly conduct; trial court's charge sufficient).
As Gipson itself recognizes, however, specific unanimity instructions are not required if the alternative bases of liability are not "conceptually distinct." United States v. Gipson, supra, 558. "The jury should not be obliged to decide between two statutorily prohibited ways of committing the crime if the two ways are practically indistinguishable." Manson v. State, 101 Wis.2d 413, 430, 304 N.W.2d 729 (1981); State v. Giwosky, 109 Wis.2d 446, 455, 326 N.W.2d 232 (1982). "The determination of whether actions are conceptually distinct must be made with reference to the purpose behind the proposed charge: to ensure that the jurors are in unanimous agreement as to what conduct the defendant committed." State v. Benite, supra, 675.
It is significant that none of the cases relied on by the defendant concerns the question whether the jury must be instructed to agree unanimously on the factual basis for rejecting a claim of self-defense. Cf. State v. Koput, 142 Wis.2d 370, 396-98, 418 N.W.2d 804 (1988). The defendant's argument assumes that because the jury must unanimously agree on the factual theory underlying the offense, it must also agree on the factual theory underlying disproof of a claim of self-defense. She offers no support for this proposition.
It appears to us, however, that the defendant's argument obscures fundamental distinctions between proof of liability and disproof of self-defense. A defendant bears the initial burden of producing sufficient evidence to inject self-defense into the case. State v. Hardwick, 1 Conn. App. 609, 619, 475 A.2d 315, cert. denied, 193 Conn. 804, 476 A.2d 145 (1984). Once self-defense is in issue, the state must disprove it beyond a reasonable doubt. General Statutes 53a-12 (a); State v. Cassino, 188 Conn. 237, 243-44, 449 A.2d 154 (1982). As a practical matter, however, the defendant controls the shape and direction of a self-defense claim. The state must apply its proof to factual circumstances raised or illuminated by the defendant. In occupying this inferior tactical position, the state would face a Herculean task if it were required to present for the jury's unanimous agreement a definitive set of facts, neatly synthesized in a unified theory, designed to explain why the defendant's conduct was not justified. We believe that the defendant's argument, therefore, would lead to a practical incongruity in the state's role of disproving self-defense.
"[General Statutes] Sec. 53a-12. DEFENSES; BURDEN OF PROOF. (a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt."
Despite serious reservation about the applicability of the unanimity requirement to self-defense, we do not, at this juncture, express the opinion that a specific unanimity charge would never be required for claims of self-defense, for it is clear that the requirement as refined by case law in the wake of Gipson does not apply to the facts of the present case.
Applying the criterion of "conceptual distinctiveness," a number of cases following Gipson have held that a specific unanimity charge is not required where the defendant's conduct does not comprise "separate incidents" implicating alternative or conceptually distinct bases of liability. In State v. Giwosky, supra, 456, the defendant claimed that his right to a unanimous verdict was violated because the trial court did not instruct the jury that it must unanimously agree on whether the defendant had committed a battery (1) when he threw a log at the victim or (2) when he struck the victim with his fists. The court held, however, that the encounter, which lasted two minutes, "was a short continuous incident that cannot be factually separated." Id. The court stated that a specific unanimity charge would have been unreasonable, since "[t]o impose the further requirement that the jury must . . . agree as to whether the victim was struck with the piece of wood or was injured during the altercation . . . is to require the jury `to draw a line finer than that which the human conduct sought to be defined will realistically permit.'" Id., 458. Thus, the court concluded that the defendant could be convicted of battery despite the possibility that some of the jurors based their conclusion of guilt on evidence of the log throwing and others on evidence of the fistfight. Id.; see also United States v. Schiff 801 F.2d 108, 115 (2d Cir. 1986), cert. denied, 480 U.S. 945, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987) (alleged acts of failing to file tax return, failing to pay tax and concealing income so closely interrelated that separate unanimity charge not required); Lampkins v. Gagnon, 710 F.2d 374, 377 (7th Cir. 1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984) (jury allowed to convict on alternative bases whether defendant conspired or actually participated in crime); Rice v. State, 311 Md. 116, 135-36, 532 A.2d 1357 (1987) (jury not required to distinguish whether conviction was based on grounds of stealing or possession of stolen property).
Moreover, a number of courts have acknowledged the need to avoid unwarranted multiplication of specific unanimity instructions by requiring such a charge only in "cases where the complexity of the evidence or other factors create a genuine danger of jury confusion." United States v. Schiff supra, 114-15; see also United States v. Payseno, 782 F.2d 832, 835-37 (9th Cir. 1986); United States v. Peterson, 768 F.2d 64, 66-67 (2d Cir.), cert. denied, 474 U.S. 923, 106 S.Ct. 257, 88 L.Ed.2d 264 (1985).
In the present case, the altercation between the victim and the defendant and Penny Daniels was brief, and took place within the confines of one room. The picture emerging from the disputed evidence was that of a whirlwind of physical and emotional turbulence. While the jury was instructed to consider several factors pertaining to the self-defense claim, these factors were applicable to a "short continuous incident" that realistically could not be atomized into discrete, distinct events. State v. Giwosky, supra, 456. After reviewing the record, we are not persuaded that the court was required to instruct the jury that it had to reach a unanimous agreement on at least one of the grounds for rejecting the defendant's self-defense claim. Moreover, we do not perceive in this case a complexity of evidence or other factors creating a need for a specific unanimity charge. United States v. Schiff supra, 114-15. We conclude that the defendant's first claim is not one of genuine constitutional proportions. State v. Huff 10 Conn. App. 330, 334, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987).
We further note, however, that even if the trial court's failure to give a specific unanimity charge was error subject to review under Evans, the error would not be grounds for reversal. State v. Benite, supra, 675-76. When an error in jury instructions In a criminal case is of constitutional dimension, we will not reverse a conviction unless it is reasonably possible that the jury was misled. State v. Quintana, 209 Conn. 34, 50, 547 A.2d 534 (1988). "`We have often said that the charge should be read as a whole in determining whether it is reasonably possible that an erroneous instruction could have misled a jury . . . "It is well established . . . that individual instructions are not to be judged in artificial isolation from the overall charge. . . The whole charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . ." (Citations omitted.)" State v. Quintana, supra, 51.
In the present case, the trial court's instructions adequately conveyed to the jury an understanding that its verdict must be unanimous. The court on several occasions informed the jury that its responsibility was to determine what had actually taken place. In addition, during the portion of the charge on evaluating the credibility of witnesses, a matter of utmost importance in this case; State v. Quintana, supra; the court told the jury that it must reach its own conclusions "in corroboration with each other." Near the conclusion of its charge, the court stated: "I will remind you at this point in time that whatever your verdict will be, it must be unanimous. . . . Each and every one of you must be unanimous in your verdicts. . . ." The court further indicated that after the verdict was delivered, the court might ask the jury if its verdict was unanimous. The court also stated that the jury would be free during its deliberations to ask the court for clarification on its obligation to reach a unanimous verdict. In view of these instructions, any further comment on the need to reach a unanimous agreement on what had taken place would have been supererogatory at best.
The defendant's second claim is that the trial court erred in omitting to instruct the jury during the self-defense charge that the defendant would not have had to retreat from the altercation if the jury found that 29 New Era Court was her "dwelling."
The trial court charged the jury that "even if the defendant was justified in reasonably believing that Jeffrey Daniels was about to use deadly physical force or was about to inflict great bodily harm, could the defendant . . . have avoided the use of deadly physical force by retreating from the confrontation with complete safety to herself and Penny Daniels? Now, if she could have retreated with complete safety, then the use of deadly physical force would not have been justified."
General Statutes 53a-19 (b)(1) provides in part that a person is not justified in using deadly physical force if he knows that he can avoid danger with complete safety "by retreating, except that the actor shall not be required to retreat if he is in his dwelling . . . ." The trial court did not refer to this exception to the "retreat rule" of 53a-19 (b)(1). The defendant argues that since she presented substantial evidence that she lived at 29 New Era Court, the trial court's failure to instruct the jury on the exception to the retreat requirement meant that the jury could have rejected the self-defense claim on the basis of the defendant's failure to retreat, without considering the exception applicable to persons in their own dwellings.
See footnote 5, supra.
The defendant did not request the court to charge the jury on the exception of 53a-19 (b)(1), nor did she except to the charge after it was given. Consequently, the claim was not preserved for appeal. Practice Book 852. The defendant argues, once again, that this claim is reviewable under State v. Evans, supra. Because the state concedes that her second claim implicates a constitutional right to proper jury instructions on self defense; State v. DeJesus, 194 Conn. 376, 388, 481 A.2d 1277 (1984); see also State v. Miller, 186 Conn. 654, 660-61; 443 A.2d 906 (1982); we will assume that Evans review is appropriate.
The state does not seriously contest the defendant's assertion that she was entitled to proper instructions concerning the defendant's obligation to retreat from the confrontation. "If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction." State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). Once self-defense is asserted, the defendant is entitled to "proper jury instructions on the elements of self defense . . . ." State v. Miller, supra, 660-61. In the present case, the defendant and Penny Daniels testified in detail that the defendant lived at 29 New Era Court. This evidence was sufficient to raise the issue of the dweller exception to the "retreat" rule. The trial court, therefore, should have instructed the jury on the dweller exception of General Statutes 53a-19 (b)(1). Id.
The state argues, however, that any error in the trial court's failure to refer to the dweller exception was harmless beyond a reasonable doubt. See State v. Cohane, 193 Conn. 474, 485, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984). It points out that the trial court did address the question of the defendant's dwelling with respect to the pistol carrying charge. On that charge, the defendant was prosecuted for violating General Statutes 29-35, which provides in relevant part: "No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same . . . ." Pursuant to 29-35, the trial court instructed the jury that the defendant "would be only justified in so possessing [the pistol] without a permit if [29 New Era Court was] in fact her dwelling house." The state asserts that because the jury found the defendant guilty of violating 29-35, it necessarily found that the defendant did not dwell at 29 New Era Court. As a consequence, the state argues, any error in the court's failure to instruct the jury in the self-defense charge on the dweller's exception to the retreat requirement was harmless beyond a reasonable doubt.
See footnote 2, supra.
We agree with the state that the jury's guilty verdict on the pistol carrying charge rendered harmless beyond a reasonable doubt the trial court's failure to address the dweller's right not to retreat during the self-defense instructions pertaining, to the assault charge. In returning a guilty verdict on the pistol carrying charge, the jury necessarily concluded that the defendant was not in her dwelling at the time specified in the complaint. There was substantial evidence by which the jury could reasonably have reached this conclusion. In her statement to police immediately after the incident, the defendant stated that her address was 134 Marina Village in Bridgeport, her mother's house. The defendant testified that she had been staying with Penny Daniels for one week or less and that most of her clothes and personal effects were left at her mother's house. Further, Penny Daniels testified that the defendant did not have a key to the apartment. Jeffrey Daniels also testified that the defendant did not live at 29 New Era Court. Upon this evidence, the jury could reasonably have concluded that the defendant did not dwell at 29 New Era Court. See State v. Hufford, 205 Conn. 386, 391, 533 A.2d 866 (1987).
The defendant argues, however, that the definition of "dwelling" recited by the trial court materially differed from that of General Statutes 53a-100, the definition required for self-defense instructions. General Statutes 53a-19 (b)(1). Section 53a-100 (a)(2) defines dwelling as a "building which is usually occupied by a person lodging therein at night, whether or not a person is actually present." The court, however, defined "dwelling" by reference to Webster's Third New Collegiate Dictionary, stating that a "dwelling house [is] a house or part of a house that is occupied as a residence. . . . [A] resident is defined as one who resides in a place; one who dwells in a place for a period of some duration." The defendant asserts that the references to "residence" and "duration" in the trial court's definition arguably lengthened the period of occupancy necessary to qualify a place as a "dwelling." As a result, she maintains that the jury may have concluded that the defendant was not a dweller at 29 New Era Court under the trial court's definition of that term even though they may have reached a different conclusion under the definition of 53a-100 (a)(2).
General Statutes 29-35 does not define "dwelling," nor refer to any other statutory definition. See footnote 2, supra.
We are not persuaded that the trial court's definition of dwelling was materially different from the definition provided by 53a-100 (a)(2). Contrary to the defendant's contention, 53a-100 contemplates a "duration" element by requiring "usual" inhabitation at night. "Usual" in this context obviously means customary or routine occupancy; Webster, New Collegiate Dictionary (1974); in short, occupation for "some period of duration." Moreover, the trial court's reference to the term "residence" did not create a broader definition of "dweller" than that provided by 53a-100. The trial court stated: "Now, there has been testimony from Penny Daniels that she had asked the defendant to reside with her at 29 New Era Court. The defendant indicates that she did in fact reside there; that she brought some clothes with her and that it was her intention to reside there. The state claims, of course, that she was only a visitor and points to the evidence that she had only a minimal amount of clothing at the residence and that she, in fact, did not even have a key . . . to the apartment." The court then charged the jury that the state must prove beyond a reasonable doubt that the defendant did not reside at the apartment. The trial court's charge directly linked the term "reside," the root of the word "residence," with the defendant's evidence, presented with respect to both charges, that she was a dweller at 29 New Era Court. Under these instructions, the jury should not have found the defendant guilty if it found that her evidence created a reasonable doubt on whether she was a dweller at 29 New Era Court.
The defendant further argues that the trial court's failure to raise the issue of the dweller's right not to retreat in the self-defense instructions was harmful error because it precluded the possibility of inconsistent verdicts. She claims that if the jury had been properly presented with the dweller exception to the retreat requirement during the court's charge on self-defense, the jury could have found on that issue that she was a dweller, thereby acquitting her of assault, but still could have convicted her on the gun carrying charge. As a consequence, she contends, the jury's finding that the defendant did not dwell on the premises implied by its guilty verdict on the pistol charge cannot support her conviction on the assault charge.
On several occasions, this court has refused to reverse a verdict of guilty on one count where that verdict appeared to be inconsistent with a verdict of acquittal on another count. See State v. Jackson, 194 Conn. 241, 243-44, 478 A.2d 1018 (1984) (inconsistent verdicts on robbery charges arising out of same incident upheld); State v. Martin, 189 Conn. 1, 6-7, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S.Ct. 2098, 77 L.Ed.2d 306 (1983) (trial court erred in relying on inconsistency in setting aside conviction on injury charge where defendant acquitted on related assault charge); State v. Morgan, 179 Conn. 617, 620 and n. 2, 427 A.2d 429 (1980) (acquittal on assault did not require acquittal on less serious endangerment charge); State v. Rosado, 178 Conn. 704, 708-709, 425 A.2d 108 (1979) (inconsistent verdicts on possession and sale of narcotics upheld). The law permits inconsistent verdicts because of the recognition that jury deliberations necessarily involve negotiation and compromise. Steadman v. United States, 358 A.2d 329, 332 (D.C.App. 1976). "[I]nconsistency of the verdicts is immaterial. State v. Manning, 162 Conn. 112, 122, 291 A.2d 750 (1971). As Justice Holmes long ago observed in the case of Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 76 L.Ed. 356 (1932): `"The most that can be said in such cases [i.e., of inconsistent verdicts] is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity." [Steckler v. United States, 7 F.2d 59, 60 (2d Cir. 1925)] . . . That the verdict may have been the result of compromise, or a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.'" State v. Rosado, supra, 708-709.
The defendant seeks to transmogrify this pragmatic accommodation of the results of the deliberation process into a criminal defendant's right. We are not persuaded that a criminal defendant has any greater right to obtain an inconsistent verdict than he has to avoid one. Further, our holding by no means disparages the decisions that acknowledge the validity of inconsistent verdicts. In the present case, the defendant could have created the possibility of inconsistency on the dwelling issue by requesting the trial court to instruct the jury on the dweller exception to the retreat requirement during its self-defense charge. The trial court's failure to create this possibility sua sponte did not deprive the defendant of a fundamental right. State v. Evans, supra.
We note that in State v. Shaw, 185 Conn. 372, 382, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S.Ct. 1027, 71 L.Ed.2d 312 (1982), we adopted the "codweller" rule, which denies to a defendant claiming self-defense the privilege of not retreating in one's premises if the premises also are the dwelling place of the victim/assailant. Consequently, we held that the trial court did not err when it declined to instruct the jury that the defendant had no duty to retreat from an assailant who dwelled in the premises where the incident occurred.
The defendant next argues that the trial court erred in not instructing the jury that self-defense could be a defense to the pistol carrying charge. The defendant did not request a charge on this claim, nor except to the charge after it was given; Practice Book 852; but asserts as with the preceding two issues that her claim is reviewable under State v. Evans, supra. The defendant's claim of a right to self-defense instructions on the gun carrying charge is without merit.
General Statutes 29-35 prohibits the carrying of a pistol without a permit except in one's dwelling. The defendant argues that if 29-35 is read to prohibit the right to bear arms in self-defense, thereby excluding a claim of self-defense arising from facts existing at the time the statute is allegedly violated, then it would infringe article first, 15, of the Connecticut constitution. That section provides that "[e]very citizen has a right to bear arms in defense of himself and the state."
It is beyond serious dispute that the legislature has the authority to place reasonable restrictions on a citizen's right to bear arms. Section 29-35 does not forbid persons from carrying a pistol to protect themselves. It simply places a reasonable limitation on that right by requiring any person who chooses to do so to obtain a permit. Moreover, as the issues in this case illustrate, the statute allows persons to carry a pistol in their own dwelling without a permit.
"The defendant cites a number of New York decisions to support her argument that a conviction for possession of a weapon may not stand if the possession was in self-defense. Most of these cases are factually inapposite. See, e.g., People v. Davis, 61 App. Div.2d 760, 761, 402 N.Y.S.2d 9 (1978) (defendant entitled to instruction of "temporary, lawful possession" on weapons charge where defendant testified that he obtained weapon by disarming attacker); People v. Messado, 49 App. Div.2d 560, 370 N.Y.S.2d 616 (1975) (temporary, innocent possession defense applicable where defendant may have gained possession of weapon by disarming attacker). Other cases have allowed the defense on the grounds that temporary, lawful possession may rebut a presumption that the defendant intended to use the gun unlawfully. See, e.g., People v. Lewis, 116 App. Div.2d 16, 19-20, 499 N.Y.S.2d 709 (1986); see also People v. Steele, 26 N.Y.2d 526, 529, 260 N.E.2d 527, 311 N.Y.S.2d 889 (1970) (reversing convictions for assault and unlawful weapon possession for trial court's failure to instruct on self-defense; appellate court did not specifically discuss application of defense to possession charge); People v. Pendergraft, 50 App. Div.2d 531, 532, 374 N.Y.S.2d 669 (1975) (factual issue whether possession of gun temporary and innocent). Under General Statutes 29-35, there is no issue as to intent of unlawful use. See footnote 2, supra. In 1984, New York's highest court distinguished the defense of "temporary, lawful possession" from a defense of justification, holding that the latter does not apply to a charge of unlawful possession of a weapon. People v. Almodovar, 6 N.Y.2d 126, 130, 464 N.E.2d 463, 476 N.Y.S.2d 95 (1984). "[I]t is difficult to imagine circumstances where [self-defense] could excuse unlawful possession of [a weapon]. . . ." Id. The court noted, however, that temporary, lawful possession was a defense, and stated that the defense would apply, for example, if the defendant found the weapon shortly before he "possessed" it, and intended to turn it over to authorities. Id.
The defendant herself acknowledges the legitimacy of the permit requirement. In her brief, she states that the right to bear arms under the Connecticut constitution is an absolute right, any encroachments of which "must be limited to the question of reasonableness of the defendant's perceptions." She adds that "the carrying of a gun by a [person dangerous because of mental instability], whose assessment of when self-defense is called for cannot be trusted, would not fall within the protective zone." Rather than leaving to the courts the troublesome task of deciding after the fact whether the person carrying the pistol was a "reasonable" person, however, the legislature has chosen instead to require licensing to preempt the possibility that unstable or irresponsible individuals may carry pistols.
The statutory scheme concerning the permit requirement for pistols provides that municipal authorities may issue a permit to carry a pistol, "provided that authority shall find that such applicant intends to make no use of any pistol or revolver which he may be permitted to carry thereunder other than a lawful use and that such person is a suitable person to receive such permit." General Statutes 29-28. Full disclosure of an applicant's criminal record is required, and permits may not be issued to convicted felons. General Statutes 29-29. Persons aggrieved by a decision of the issuing authority may appeal the decision to a board of firearms permit examiners. General Statutes 29-32b (a) through (c).
In the present case, the defendant was tried for violating 29-35 because the state alleged that she carried a pistol without a permit at approximately 5:30 a.m. on January 25, 1987. The defendant was not charged with violating the statute in that she used the pistol to assault Jeffrey Daniels. In claiming self-defense to this charge, the defendant is asserting a justification for carrying the pistol, not for using that pistol as she did. Under General Statutes 53a-19 (a), however, a claim of self-defense may be invoked only to justify the actor's use of reasonable physical force. Self-defense does not apply if a defendant's use of force is not in issue. Because the use of force is not an issue in a prosecution for a violation of 29-35, the defendant's self-defense claim is immaterial. Cf. State v. Holloway, 11 Conn. App. 665, 671 and n. 6, 528 A.2d 1176 (1987).
In State v. Holloway, 11 Conn. App. 665, 671 and n. 6, 528 A.2d 1176 (1987), the court held that the trial court's instruction on self-defense to the charge of carrying a deadly weapon in violation of General Statutes 53-206 was erroneous.
We are not persuaded by the defendant's theory that her carrying of the pistol was a "threat" of the use of force sufficient to invoke the justification of self-defense. The defendant asserts that 53a-19 contemplates instances in which an actor claiming self-defense threatens to use force as well as instances in which the actor uses force. She argues that because the evidence was sufficient to establish that her carrying of the pistol was in fact a threat to use force, the trial court should have instructed the jury that self-defense would apply to the pistol carrying charge.
We express no opinion on whether 53a-19 applies as a defense to prosecutions for crimes concerning the threat of use of force. That is not the case before us. The defendant in the present case was charged with carrying a pistol, not with threatening to use it. Even if the defendant's conduct in carrying the pistol was factually inseparable from a threat by her to use force, the only legal question arising from the conduct was whether she was carrying the pistol without a permit in violation of 29-35. We conclude that the defendant was not entitled to a self-defense instruction under 53a-19 to the charge of carrying a pistol without a permit.
The defendant also claims that self-defense qualifies as a justification for carrying a pistol without a permit under General Statutes 53a-17. That statute provides: "Unless inconsistent with any provision of this chapter defining justifiable use of physical force, or with any other provision of law, conduct which would otherwise constitute an offense is justifiable when such conduct is required or authorized by a provision of law or by a judicial decree, including but not limited to (1) laws defining duties and functions of public servants, (2) laws defining duties of private citizens to assist public servants in the performance of certain of their functions, (3) laws governing the execution of legal process, (4) laws governing the military services and the conduct of war, and (5) judgments and orders of courts." She argues that article first, 15, of the Connecticut constitution is a "provision of law" authorizing the carrying of a pistol without a permit for self-defense purposes. Our discussion above makes it clear that article first, 15, has no such effect. Moreover, our discussion above disposes of the defendant's argument that her claim should be reviewed under the "plain error" doctrine. Practice Book 4185.
The defendant's final claim is that the trial court committed reversible error in failing to grant the defendant's motions for judgment of acquittal on the pistol carrying charge made at the close of the state's case and at the close of all the evidence. She argues that there was insufficient evidence to support the allegation that she carried the pistol. The trial court denied both motions.
We disagree with the state's argument that we should not review this claim because the reasoning the defendant puts forward on appeal was not argued to the trial court. A review of the transcripts indicates that the defendant based her motions for judgment of acquittal on a claim of insufficient evidence that the defendant carried the pistol.
"`When a verdict is challenged because of insufficient evidence, the issue is whether the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. . . . State v. Benton, 161 Conn. 404, 407, 288 A.2d 411 (1971).' State v. Nemeth, 182 Conn. 403, 410, 438 A.2d 120 (1980); see State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985). `The evidence must be given a construction most favorable to sustaining the jury's verdict.' State v. Carter, supra." State v. Findlay, 198 Conn. 328, 333, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Because the defendant elected to present evidence, we review the evidence in toto to determine whether it was sufficient to uphold the jury's verdict. State v. Simino, 200 Conn. 113, 118, 509 A.2d 1039 (1986).
The state's information charged that the defendant on the day and time in question "did carry on her person a pistol, without a legal permit therefore" while not in her dwelling place. The trial court instructed the jury that the defendant was being charged "with possessing the pistol on January 25th, 1986 around 5:30 a.m. within the premises at 29 New Era Court, Bridgeport." The court specifically told the jury that it could not find the defendant guilty for carrying the pistol to or from the scene.
The defendant claims that under the trial court's instructions and the state's information, the defendant was alleged to have carried the pistol when she held it to shoot the victim. She contends, however, that the language of 29-35, prohibiting the "carry[ing]" of a pistol on one's "person," as well as the legislative history of the statute, contemplates that "carrying" requires more than mere "holding" or "possession."
We disagree with the defendant's contention that the state's complaint and the court's charge limited the jury to finding that the defendant "carried" the pistol only when she shot Jeffrey Daniels. The information clearly alleged that the defendant "carried" the pistol while she was in the apartment, and did not limit the allegation of "carrying" to the single moment when the defendant pointed the pistol at Jeffrey Daniels. There was sufficient evidence to support the defendant's conviction. State's witness Jeffrey Daniels testified that during the altercation the defendant left the bed, went to a corner of the bedroom, returned to the bed and pointed and shot the pistol at him from a distance of no more than ten feet. The state also introduced a statement given by the defendant to police immediately after the incident in which she disclosed that she had owned the pistol for a couple of months. In that statement, she admitted that she had removed the pistol from her jacket prior to shooting the victim. The defendant also testified that she had brought the gun into the apartment.
The trial court's charge made it clear that the jury could not find the defendant guilty of violating 29-35 for acts not specified in the information. The information and the court's charge obviously did not preclude the jury from considering direct evidence pertaining to the defendant's conduct while she was in the apartment. Nor did it preclude the jury from considering evidence of other acts to draw the logical inference that the defendant carried the gun as charged. A review of this evidence recited above indicates that the jury could have concluded beyond a reasonable doubt from the facts established and logical inferences drawn therefrom that the defendant carried the pistol in violation of 29-35. State v. Findlay, supra, 333.


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09/09/2019 15:10
PM's urge to open roads to Amulsar must be grounded: Edmon Marukyan
Head of Bright Armenia faction Edmon Marukyan believes that the request to open the roads to Amulsar must be grounded.
"In essence, these are predictable developments, such process was to take place. I was mistaken in one thing, I was thinking new environment impact assessment will be conducted but the experts told me that for it the old one must be recognized invalid while in this case Lydian will appear in administrative court," Marukyan said.
As to the urge of the head of the government to open the roads, Marukyan said the urge must be grounded with arguments.

subset: commoncrawl


text:
Our Principal
Welcome Nueva Vista High School students and families. I have the honor of being the Principal at NVHS this year. We take pride in being a school where every student can find an avenue for success and in being a community where everyone strives to find the best in themselves and others. We have much to be proud of at Nueva Vista and I look forward to another year of serving our community.
The success of our students is built on the partnership we have with our families and community members. I am grateful that we have such an amazing relationship with our community, and we will continue to strive to be the type of school to where our families can be proud to send their children. Our entire staff works very hard to create a positive environment where every person's unique
strengths and talents are celebrated. We have a culture of high expectations and it is our sincere goal that each and every one of our students graduates with a plan for the future. The combination of focusing on our students' academic success as well as their social and emotional well-being creates an environment where our students do amazing things every year. This year we are partnering with our Bassett Adult School to enroll our students in the CTE program so that they can graduate with a certificate as well as their high school diploma.
We have a kind, caring, highly-qualified staff who truly believes that every one of our students can and will succeed. I am proud to be a part of the tradition of success that has been built over many years at NVHS and am proud to be your Principal. I am grateful to have the opportunity to work with you again this year and I look forward to a great year.
Maria Herrera, Principal


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Leaving a person like this is a big risk due to the fact that the chances are not in her favor of discovering a genuine, reputable and also manly guy. Rather of squandering her energy as well as time going with multiple males and partnerships, she chooses to remain and deepen her existing bond with you, resulting in much deeper rewards and also satisfaction in the future for you both.
He had been very one track minded. Told me I could not enjoy EDM( electronic dance music) since I did not do drugs and I would never understandthe'truemeaning'or'truesense' of the audio due to that fact. He was not interested in hearing my point of view and the fact he can't possibly understand that music makes me feel while sober.
Think of socializing with Josh, he's a good person. You begin telling him regarding your new business concept, as well as he seems fascinated, requests for details, searches in your eyes, and the discussion keeps going. Then you socialize with Brad, you start the exact same conversation. Brad responds with" aha" , while checking out his phone and does not follow up with any type of inquiries. It's apparent he's not interested.
Irrespective of how they casual encounters Roanoke VA to the way they talk, who they talk to, how they act around their friends, how they smell, the pitch and timbre of the voice inform us as to whether we're drawn enough to them which we would wish to make this very first strategy. We Saratoga Springs t4m casual encounters each these signals so rapidly that we're often unaware of this; to our conscious thoughts, we are only eliding over the ones who we read because" nope, not curious" while we narrow our focus on the people who get it done for us.
They Will Never Change During the separation process, you might have doubts. The narcissist will appeal to a kind nature and brazilian hookers fuck to convince you they can change. They may deliver flowers and take you and begin the online dating worldwide free Saratoga Springs NY stage around again. While our logic thinking knows this is a scheme to regain our confidence for further manipulation again, being treated like royalty gives us a renewed, yet false, sense of hope which the narcissist has the capacity to change their ways and become the person we believe and want them to become. Some narcissists will proceed as far as seeing a therapist and participating to safeguard your trust and convince you that they are capable of change. This may win you over for a little while, but remember that short- term changes don't translate to the long- term. The narcissist is so focused on getting one to trust them again, which they'll undergo a great deal even once you think they are incapable of proving it. Among the facets of earning a narcissist, in an emotional level, is accepting that they'll never change. This is because they are incapable of changing who they are. Narcissism is a character disorder, and it's both created and inherited over several years, beginning in childhood. A narcissist's behaviors are also intentional, and they're often aware of who they are and can use it. There's no way to change them, and if they could change, many would not wish to. Having a lack of empathy and an interest in getting their manner becomes an essential part of who they are. They don't want to take responsibility nor do they really want to feel or empathize with those they hurt or hurt. They wish to win and boost their ego to the point of adoration and take advantage of as much in life if it be love. Allowing them to take on accountability is seen as an unnecessary burden to the narcissist: why not shift the blame to somebody else instead? Accepting that We Can Not Change Them or enhance the Relationship to understanding that a narcissist won't alter, it's also very important to realize that we cannot change them either. Some people will convince themselves, and others, that by revealing love, more focus or adoration, they could alter the way a narcissist sees the world and treats individuals. They may believe all they need in order to be like everyone else, is acceptance and love. It is futile because no amount of affection or love will alter the trajectory of a narcissist's best place to post casual encounters Saratoga Springs to believe this. If anything, they'll use this growth of affection to further manipulate and gain control over somebody who believes them can alter. Accepting that the connection with the narcissist will never improve is another obstacle that is challenging, along with their inability to modify. Then we can be realistic in how we proceed on and change our attention on our when we realize that they can not change and thus the connection will never progress.
I've been learning to adopt of us being flawless harmony, the ideas and feelings and it feels good. It takes some time to feel prepared to be together with your Twin Flame and if you are runner or a chaser, you experience fear.
So, if you really feel as if you should begin getting less and a bit more serious of a playboy, finding the proper woman should be higher. And regarding the question of where to locate online dating is a dependable, healthful source of eligible ladies.


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Do Understand Guys Are Seekers, Ladies Are Gatherers Since it is in his nature to quest, allowed him search you. Create a game where he has to presume what you are putting on( and this can obtain fun- sexy promptly) as well as you learn what his turn- ons are.
Do you really know what makes your spouse feel cherished, loved, and happy in your relationship? If you haven't asked right( or been educated directly) , your genuine efforts may not be getting the desired effect.
What to" notice" about her wonder: it's not her natural beauty The natural tendency of a guy to catch the attention of a lady is to appreciate her beauty. However, the matter is, girls know their attractiveness can attract a guy, but her beauty cannot make any relationship. In the Waterloo Illinois local swinging sluts, she'll be enamored with a local sluts who enjoys her for.
An man is not easily impressed by anything. He acknowledges and admits as he see fit. On the other hand, the male gets astounded with anything. And the funny thing is this.
A lot of men will go to the gym for a local sluts, get a lamar odom hookers Maple Valley bulge, then abruptly think they seem like a fitness model. Should you require a reality test, check out some fitness versions on Instagram to return to Earth.
Know that" Buyer's Remorse" is also temporary. Although emotions are feminism and casual sex to people does not necessarily signify that they are accurate. In fact, feelings occasionally lie. My proposal is to delay it, In case you have any questions about a decision that you Waterloo IL make concerning the connection.
Amidst the serious Waterloo local sluts twitter as my arms wanted to detach and Waterloo photos of local sluts to the floor I started to feel in my shoulders, a thing began to happen. I became largely oblivious. It was still there, for sure, but thanks to the rapid, rhythmic breathing and Tommy's entreaties that" it is all in your mind" , I began to gain a wholesome outlook on the pain. It had been there, but I wasn't bothered by it as far as I believed it would. Pain without story. How very novel and exciting.
- Are you and like to keep a well groomed appearance? This one should be simple, these traits should be whatever your proud of or comes to mind first when you consider things about yourself that makes you happy.
The Socially Undeveloped Guy, nevertheless constantly" wants" good things to happen to him, or he" needs" what things to happen his way, and he will fall into negative emotional turmoil over incidents like breakups, work difficulties, or the sensation of being a victim. The anger or resentment from such occurrences will persist long beyond the point of the natural grieving procedure.
Selfies: The recent local sluts to be added to the oxford dictionary in the previous season was selfie. The term suggests that the clicking of your picture, usually with the front camera of your phone. Clicking selfies are a good method to show that you care about yourself. It signifies that you are a person that does not hesitate to indulge in a bit of self- love. It proves that you are a self- groomer. A person can be thought to be one who is confident of his great looks.
Your fight or flight response may go off. Your adrenaline might have pumping, your Waterloo IL might get sweaty, but no matter what happens during that first experience, you can learn from the experience and do better next time.
Determine not to talk to yourself any differently than you would want anyone else. In addition, I like to remember what God has said about me. I'm treasured, I am significant, I am able, and I am valuable.
I'll repeat here; it doesn't matter how great your opening email to any local tinder sluts Waterloo is, even she's not going to respond to you if attraction can't be generated by you through your profile then. On the rare occasion she does respond, it won't be a very receptive response.
Virgin, batman or Men and casual sex Waterloo Killer It seems that online dating isn't for the faint- hearted. A friend of mine explained it nicely asan'ever- escalating game ofchicken' He went on to tell me about a girl who'd contacted him and after only two messages had delivered him a photograph of her vagina that resembled a" knife wound at a gorilla's back" Great image.
But it is like he could do no wrong. Since I picked him for a date, I really don't want to watch him mess up, and that I don't like being wrong. We can run through a racetrack of red flags for the evening, and I will believe- - Yep. He is great. His flaws make him perfect. I" get him, " you understand? And he gets me.
You will have a management problem to program the dates and what actions can you? Again, no java dates! Plan ahead and think about what you would love to do. Browsing through a bookstore collectively is much more intriguing than sitting on coffee.
Re- framing is changing the meaning of an experience or an event by putting yet another" frame" around it. It is seeing an opportunity( not an issue) , or giving a new interpretation of enabling( instead of disabling) to anything occurs to you.
Are We Discussing Affairs Here? A casual sex elizabeth at a primary love relationship has a connection that is third party and deems it a connection. A marriage can take the form of an occasion. We've worked with clients who've been able to make their relationships into healing experiences, with them to enrich their connections and make them stronger. That is possible only if the new pairing is a friendship rather than a local sluts image board Waterloo event.
One of Gilda's sons used her computer. He discovered an local sluts com Alamogordo between Gilda and Eric that contained details of transactions. Gilda's family first discovered that she had been sending money to 16, this was.
Those vain fantasies about what the woman actually resembles often drive from the minds the idea. Regular guys also choose to feel it is better to regard females in relation to" the poor little woman. " Within this suspicious mind- set, then, they often fixate on beauty and form. This is grossly counter- productive to a far healthier attitude of versatility in how women are regarded. Disadvantaged Delmar, 1particular poor guy, in terms of financing, told he was aggressively chased by a local sluts medical doctor. If you can believe this, he was an unemployed salesman. Throughout the chase hecouldn't understand, and everything is new, the way the woman in hot pursuit could appear to be anywhere near dateable. She was treated by him, not as she had been much more like an annoyance, although a prize catch. As a matter of fact, it was this specific quality of stick- to- it- ness in moving after him got her through school. You'd think that are a Waterloo IL autism online dating. It had been. She would call and say something to the effect of, " I really wish to see you, Del. " This really is actually the doctor lady calling, right. " Are you really serious? " " Yes, I'd like to see you. " " Me? Oh, I do not understand, I'm not sure I can arrange it. " this said in his ear, and he could not understand how she would help him. Hecouldn't grasp at the least, that by merely being with her, the way that would also handily further her entire life along on a more placid and loving airplane- - forming a anal fuck buddy amateur with him, even. It disturbs this narrative, people, even those who have heard what. That poor man is going to have a hemorrhoid. However, being as inhibited because he is, as he's so aptly proved by his own rejection of a highly talented most expensive prostitutes M. D. datehe can, as a backlash to this, resent to the depths of his beingsome new, strange doctor's finger poking around in his behind to fix it. Not remembering the chance lost together with the physician gal who chased him with amorous gusto, who might have much later quite conveniently handled histroublesome'roids and then maybe some gallstones too, then, he no doubt lapses these days into ridiculous obsessive ideas. Perchance he may be dr prostitutes even today, " she could never have stuck up her finger me, not her, my date. I would have gotten someone else to test them, but not her, why would I get her- - my date, to perform it. " So he does not get it.
Exercise uplifts the mood due to the release of endorphins. They work in a similar approach to morphine in which" high" or" feel- good" Waterloo IL local teen sluts are released, which triggers a feeling of euphoria in the entire body. Athletes are known to experience what has been termed as" runners" after working out. It makes them feel energized and confident.
Take part in among your hobbies as well as local sluts block chain Waterloo yourself to relax. Take a few deep breaths and remember that it's only an individual. The most awful that will occur is that they don't like you or you do not like them. If you attempt hard enough though you must be able to have a good evening even if, at the end of it, you understand nothing else is going to occur with he or she.
One couple in marriage counselling had a great deal of difficulty she was a romantic buff and because he was a friendship buff. She felt that his trendy love was not love, and he felt that her amorous love was shaky. Provide for her needs his style of adoring was to take good care of her, and remain at the marriage, and he believed that this was evidence of his passion for her. Her request was for him to say, " I love you" and also to express different forms of romantic thoughts that would make her feel loved and romantic. His friendship love wasn't a good mix with her amorous love.
A visitor created in regarding Mr Y's instance. She suggests that we put ourselves in the guy's shoes as well as see whether we such as somebody trying to separate our happiness. The viewers suggests that Mr Y need to take a selfless approach, where he is satisfied the lady he loves is satisfied as well as well- looked after. I didn't local amateur sluts oc Waterloo to concur( an urge to safeguard my client) . . . however after severe reflection, I generated since the visitor has a point. The easiest method for Mr Y to be satisfied is to recognize that he cares for the girl although she's selected to be with someone else. In such a way, Mr Y is a martyr who compromises his need to be with her, for her happiness. Could a guy do that if he loves a female? I'm certain he could, yet I doubt she would certainly also observe his sacrifice. Blade in the Heart Mr Y said he felt a Waterloo Illinois meet sluts free and fuck now local stabbing pain in his heart, when he discovered that the lady he liked had just recently located a sweetheart. I claimed, " I recognize that acute pain sensation. " Everybody that has actually been on the verge of losing a charming pictures of hookers has actually felt this sharp stabbing Waterloo IL local hot and wet sluts. If you have not, after that you have actually not enjoyed with all your heart. The even more you like an individual; the much more you respect him or her, the higher the sensation of being stabbed in the heart when they betray or cheat your love.


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I have read the help files on the trailing stops and it appears to only be set up for someone who is dyslexic or wants to set something up for scaling in or scaling out from the Super Dom.
As much as I don't like it I can place orders from the Super Dom.
To be clear I do not want scaling in or out. I want to set a trailing stop like I could on any other platform in existence. So how do I do so?
It appears that I have to set up an ATM strategy and set up a quantity, Stop Loss and Profit target save it and then chose it before a trade is placed for it to work. Am I correct?
I don't want to set a profit target but can deal with it if the stop strategy will automatically take over and stop the trade from being closed.
Since I am only really trying to do the most complicated trailing stop in history do I need to set up more than 1 target for this?
If I am correct and I can set 1 target and then create a stop strategy. Is this just saved also and how, or do I need to make the ATM target and Stop strategy then save it as 1 name or are they 2 separate things as far as NT is concerned? Do I have to do a custom for each trade?
Moving on to the stop Strategy Screen.
At the top is the auto Break Even.
Seems simple enough. If I put my stop loss at 15 and auto break even at 15 plus 1 when I am 16 ticks into profit it should move my stop to 1 tick in profit, am I correct? I would prefer not to use this feature at all to make things easier. Is it possible to not use this and if so what values should be entered.
Now we get to my Auto trail. Closest thing we appear to have to a trailing stop.
Assuming I have made it to my 1 tick profit I believe this is somehow how this starts to kind of work. Hopefully this is where we get started because I do not want to use the auto break even feature.
I only partly understand how this works.
It appears it gives me 3 chances for a trailing stop kind of instead of just clicking 2 or 3 times and setting a real trailing stop.
I have a stop loss, lets say I want to enter 15, a frequency <I have no Idea what to put> and a profit target that I don't want to use.
So how do I make this work as a trailing stop.
I don't mind being able to tighten the trail as profits rise and that's probably a good feature but I want to start off with a trailing stop like every other platform in existence has.
I want to be able to do a real trailing stop from the chart trader that I actually use instead of the Super Dom also.
Help me out here and bring some sanity into Ninja Trader 7.


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|Terms and abbreviations
|Concepts and methods
|MitoPedia: SUIT
|MiP and biochemistry
|Preprints and history
User code - DatLab
A user code or name is entered upon starting DatLab. This window pops up automatically after opening DatLab. The current user is displayed in the O2k signal line and usernames are connected with personal graph layouts. Users can be renamed and deleted (with all linked personal layouts) using menu 'File\Manage users'.
Reference: MiPNet21.16 DatLab 7 Innovations
MitoPedia O2k and high-resolution respirometry: DatLab


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Rs.47.72 lacs standalone HY2 profit at Globe International Carriers in FY2019-20
Globe International Carriers announced its standalone and consolidated statement of financial results for period ended on 31st March 2020 marking fall in revenue but rise in net profit
Company : Globe International Carriers Limited
Globe International Carriers published HY2 financial results in which the company earned total standalone revenue of Rs.41.56 crore for the March 2020 half year while last year same period it was Rs.44.34 crore.
Standalone net profit reached Rs.47.72 lacs in the first half year of FY2019-20 against Rs.42.31 lacs in a year ago period.
Earnings per share for the current half year was Rs.0.59 whereas preceding year same period it was Rs.0.53.
The standalone financials for the recently concluded year 2019-20 shows revenue of Rs.80.38 crore and PAT of Rs.96.71 lacs.
Following are the consolidated financials at Globe International Carriers in FY19-20: HY2 revenue reached Rs.42.83 crore against Rs.53.60 crore in a year ago period. HY2 net profit was Rs.25.90 lacs while previous year corresponding period it was Rs.56.55 lacs Annual revenue reached Rs.87.70 crore as compared to Rs.116.53 crore a year ago. Annual PAT stood at Rs.39.18 whereas previous year it was net profit of Rs.1.61 crore.
Recent Stories


text: For some people, February is all about planning out the perfect date for your significant other. But did you know it's also National Children's Dental Health Month? This means February is a perfect opportunity for parents to learn about how to implement excellent oral hygiene habits into their child's life. Keep reading as a children's dentist in Sparks offers some tips on how to teach these habits to your son or daughter.


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If half of your heart is in Havana (ooh-na-na), then this seductive and smooth hair bar duo will take you to a place of warm nights, white linen everything, vintage cars, pastel buildings and tropical sunsets. An intoxicating and gender-neutral culmination of earthen woods, rich tobacco and leafy citrus greens, with a hint of amber and vanilla, our Havana shampoo bar and conditioner bar will bring you back to 1940's Tropicana and the Las Vegas of the Caribbean.
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Our bars last longest, and perform best, when allowed to dry between lathers. We recommend storing them on a soap dish with drain holes and keeping them away from spraying water while not in use. For shampoo, you can either apply shampoo directly to wet hair, or create a lather in your hands, then apply. Starting at the scalp, massage through hair until desired lather is reached then rinse thoroughly. Repeat if necessary.
In stock
Additional information
|66 g
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Shampoo bar: sodium cocoa sulfate, coconut oil, cocoa butter, fragrance oil blend (paraben and phthalate-free), shea oil, hemp seed oil, apricot seed oil, tamanu oil, (essential oils of: bergamot and cedarwood), d-panthenol, mica, vitamin e, titanium dioxide, and chromium oxide green
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I have listed a new property at Lot 3 Clark PL in Little Bear Lake.
Truly unique modified double a frame home at Little Bear Lake. Just two hours NE of Prince Albert on Hanson Lake Road. Perfect for year round use by avid fishermen or hunters. 62 lakes less than an hour away with most great for fly fishing. Lots of guad trails and along the Trans Canada Snowmobile Trail. Private drawbridge style boat dock, 1.5 storey garden shed, 2 storey workshopm hot tub, wrap around deck on 3 sides, 18x28 metal storage building on a 2 leased lot in storage compund. Air strip available. Subdivision has approx 140 cabins plus a campground. Approx 25 year round residents. Your back door neighbor is the Northern Forest. Home boasts a diva induction cooktop and a Miele oven. These and all other appliances are not included but are negotiable. Let N54 degrees17.233m long W104 degrees 40.603m private well plus horizontal drilling to lake. Measurements are approx . Home shows great. Check it out.


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This seasonal decoration features a ring of pinecones all flowing from a woven branch base. Mixed in with the cones are sprigs of bright red berries for added color and contrast. Display this rustic and country flavored wreath on doors, walls and windows in indoor or covered outdoor locations.
- 20 in. in diameter
- Pinecones on a woven branch base
- Trimmed with red berries
- For indoor or covered outdoor display