STATE v. DARRYL W., SC 18396

Judicial District of Waterbury

Criminal; Whether Jury Should have been Instructed that Defendant's Gun had to be Operable in Order to Convict Him of First Degree Kidnapping With a Firearm and Attempt to Commit Aggravated First Degree Sexual Assault; Whether State Improperly Bolstered Victim's Testimony and Appealed to Jurors' Emotions.  The defendant was charged with kidnapping in the first degree with a firearm, criminal attempt to commit aggravated sexual assault in the first degree and sexual assault in the third degree.  At trial, the defendant raised as an affirmative defense to the charges of kidnapping with a firearm and attempt to commit aggravated sexual assault that the air pistol he allegedly used was not operable because it lacked a carbon dioxide cartridge and therefore was incapable of firing a shot.  In charging the jury as to those crimes, the court stated that the state only had to prove that the defendant represented by his words or conduct that he possessed a firearm or deadly weapon and that it did not need to prove that the defendant actually possessed a weapon or that the weapon was actually capable of discharging a shot.  During its deliberations, the jury asked the court the following question: "Does the gun need to be theoretically operable or actually operable at the time the crime was committed?"  The court and the parties discussed how the question should be answered, and the court ultimately decided to reread to the jury the definition of a firearm set forth in General Statutes § 53a-3, which provides that a firearm is a weapon, whether loaded or unloaded, from which a shot may be discharged.  The defendant was subsequently convicted of all charges.  In this appeal, the defendant argues that the court deprived him of his due process right to a fair trial in failing to instruct the jury that the state was required to prove beyond a reasonable doubt that his air pistol was operable for both the conviction of kidnapping with a firearm and attempt to commit aggravated sexual assault.  Moreover, he claims that even if it is determined that the operability of his weapon was not an element of those crimes, the trial court's improper instructions on operability denied him his right to present his affirmative defense. He also argues that the state improperly vouched for the victim's credibility and improperly appealed to the jurors' emotions.