REPORT OF THE STATE’S ATTORNEY FOR THE JUDICIAL DISTRICT OF NEW LONDON CONCERNING THE USE OF DEADLY PHYSICAL FORCE BY A NORWICH POLICE OFFICER ON AUGUST 28, 2012 IN THE CITY OF NORWICH

Section 51-277a of the General Statutes provides that, whenever a peace officer in the performance of his or her duties, uses deadly physical force upon another person and such person dies as a result thereof, the Division of Criminal Justice shall cause an investigation to be made and shall determine whether the use of deadly physical force was appropriate under section 53a-22 of the General Statutes.

On August 28, 2012, a Norwich police officer used deadly force resulting in serious physical injury to Gino Nicasia in the City of Norwich.

Supervisory Inspector Philip Fazzino was notified after the shooting and inspectors immediately went to the scene. The Connecticut State Police Eastern District Major Crime Squad conducted the investigation in conjunction with inspectors from this office. Detective Ryan Luther submitted the completed investigatory case book, which this writer has incorporated into the instant report.

It is the conclusion of the undersigned that the use of deadly physical force was appropriate. Accordingly, no further action will be taken by the Division of Criminal Justice.

CIRCUMSTANCES OF THE INCIDENT

On Tuesday August 28, 2012 at approximately 5:49 a.m., Norwich police officers responded to the parking lot outside of the Backus Hospital Emergency Room for a possible domestic incident involving an individual who had locked himself in his vehicle. Upon arrival, the officers met with hospital security and attempted to speak with the subject, who was later identified as Gino Jermaine Nicasia. While officers spoke with Nicasia, Sergeant Patrick Mickens arrived on scene and attempted to talk Nicasia out of his vehicle. As Sgt. Mickens and Nicasia’s mother, Marvarie Blair, were speaking, Nicasia put the vehicle in reverse and backed up out of the parking space and struck a Norwich police cruiser that was blocking him in. Nicasia pushed the Norwich vehicle back and made a U-turn in the lot. Sgt. Mickens, who was near Nicasia’s vehicle, tried to move away but was struck on his right hip area. Sgt. Mickens then drew his service weapon and fired several rounds into the vehicle, striking Nicasia in his right leg. The vehicle then came to rest after it struck a curb in the same parking lot. Eastern District Major Crime Squad (EDMCS) detectives conducted numerous interviews and processed the scene and the black vehicle, a 2002 Toyota Camry. Nicasia was treated at the William W. Backus Hospital for a gunshot wound to his right leg, and held at William W. Backus Hospital on an emergency psychiatric committal. Sgt. Mickens was treated at the William W. Backus Hospital Emergency Room for minor injuries to his right hip, and released later that same morning.

Medical records for Sergeant Patrick Mickens noted that on August 28, 2012, he was treated at the William W. Backus Hospital for a complaint of pain to his right hip after being struck by a motor vehicle in the hospital parking lot. The medical records further noted that Sergeant Patrick Mickens was diagnosed with joint pain in his pelvis, a sprained hip and thigh, and a contusion of his hip. The injuries were consistent with being struck by Nicasia’s vehicle.

The EDMCS processed the scene, four spent shell casings were located on the ground northwest of Norwich Police Cruiser Unit #27. Unit #27 was parked in an aisle on the south end of the parking lot, and was perpendicular to three parked civilian vehicles, and four empty parking spaces, all to the right side of Unit #27. Unit #27 had minor damage and black paint chips/flakes on the right front quarter panel, and black flake fragments on the right front tire, consistent with being struck by the rear end of Nicasia’s vehicle. An examination of Sergeant Mickens duty weapon revealed that four rounds had been discharged.

Nicasia’s vehicle was processed by the EDMCS. The vehicle was a black colored 2002 Toyota Camry 4 door. The vehicle was documented by digital images and an inventory of its contents. Observed on the vehicle among other things, was that the left front driver’s side door had two defects on the exterior side of the door, and two defects on the interior side of the door. The defects on the interior side of the door were consistent and matched up to the two on the exterior side. There was one defect in the left side of the center console/armrest inside the vehicle. There was a blood like substance on the right front passenger seat of the vehicle. There were two cracks that were possible defects, on the hubcap of the left front tire. The left side of the rear bumper was cracked and had white scuff marks, consistent with backing into and striking the right front quarter panel area of Unit #27.

The incident was observed by Norwich police officers Rodman Cappiello, Scott Dupointe, John Perry and Scott Meikle, who collectively reported among other things, that on Tuesday, August 28, 2012 between approximately 5:30 a.m. and 6:30 a.m., they were dispatched to the William W. Backus Hospital located at 326 Washington Street in Norwich, Connecticut for a report of a possible domestic dispute, and a male who had barricaded himself inside his vehicle. The officers reported that upon their arrival at the hospital, they met with the hospital security officers and a female later identified as, Marvarie Blair, who informed them that her son, Gino Nicasia, was locked inside his vehicle with a set of car keys, and refused to exit the vehicle. The officers reported that they were informed by security officers that Gino was having “mental issues,” and that his mother had brought him to the hospital for a psychological evaluation, because he was hearing voices. The officers reported that Gino’s mother told them that Gino called her that evening and told her that, “The Puerto Ricans were in his head and telling him that his mother was going to kill him.” The officers went out to the parking lot and observed Gino sitting in the left front driver’s seat of a dark colored four door Toyota with tinted windows. The vehicle was parked in a parking space outside of the Emergency Department, with the front of the vehicle pulled into a space and facing a curb and concrete pillar with a light post on top of it. The officers observed that Gino was the sole occupant inside the vehicle. They asked Gino several times to roll the window down and speak with them and exit the vehicle, but he did not respond and instead stared at them with a blank look on his face. Gino’s mother also walked up to the driver’s side window of the vehicle to speak with him, he did not respond. Gino eventually turned on the engine and rolled the passenger side window down approximately one inch. When Gino started the vehicle’s engine, Officer Dupointe moved and parked his marked patrol vehicle, Unit #27, behind Gino’s vehicle. The officers continued a dialogue with Gino, and asked him what was wrong and why he was there. Gino replied, “I just want to go home, I’m waiting for my mom.” The officers observed Gino putting his hand on and off of the gear shift, and turn his head from left to right to see who was around his vehicle. They asked Gino to turn off the vehicle, and get out of the vehicle for everyone’s safety, Gino refused. Sergeant Mickens soon arrived and attempted to speak to Gino, while standing on the driver’s side of Gino’s vehicle. Gino’s mother was standing next to Sergeant Mickens at the time, as both attempted to speak with Gino. Gino then backed up and struck Unit #27, as Officer Cappiello and Officer Perry were forced to jump away from the vehicle. The vehicle then drove forward and to the left over a curb and towards Sergeant Mickens and Gino’s mother. Norwich police officers observed Gino continue to accelerate towards Sergeant Mickens in a reckless manner. The officers reported seeing and hearing Sergeant Mickens fire three or four shots from his duty weapon into the left driver’s side of Gino’s vehicle. The vehicle slowed and came to a stop after striking a raised curb in the parking lot. The officers reported that they approached the right passenger side of the vehicle and rendered first aid to Gino. The officers observed Gino to have a wound to his right thigh area. Medical personnel from the hospital arrived and took over treatment of Gino.

Sergeant Patrick Mickens of the Norwich Police Department provided a signed written report regarding his actions during August 28, 2012. Mickens reported that on August 28, 2012 at approximately 0610 hours he was working as a patrol supervisor when he was advised by Sergeant Blanch that there was a barricaded subject in a motor vehicle at the William Backus Hospital. Mickens responded to the hospital and entered the rear parking lot of the Backus Hospital. Upon his arrival Mickens observed Norwich police officers Dupointe and Cappiello standing next to the passenger side door of a black four door vehicle with tinted windows. Mickens reported that there was a traffic island with a concrete light post in front of the black vehicle, an open parking space on the driver’s side of it, and a marked Norwich police cruiser parked behind the black vehicle. Mickens saw a female, later identified as the mother of the subject in the black car, standing outside and next to the driver side door tapping on the closed driver’s window. He observed three Backus Security officers also present in the parking lot area. Mickens approached the driver’s side of the black car and observed the sole occupant inside the vehicle to be a male in the driver’s seat. He observed that the vehicle was running and the operator was revving the engine. Mickens reported that the operator’s mother told him that she had brought her son to the William Backus Hospital for a mental evaluation because he had been hearing voices telling him to do bad things. The mother related to Mickens that when she arrived at the hospital her son took the car keys and refused to exit the vehicle. Mickens instructed police officer Meikle to position his vehicle on the driver’s side of the black vehicle to prevent it from fleeing. Mickens reported that as Officer Meikle was driving through the lot he heard one of the police officers yell, “Oh my God, Oh my God, the vehicle is moving.” Mickens reported that simultaneously, he heard the black car’s tires screech and saw the black car rapidly accelerate backwards and strike the front end of the police cruiser behind it. The black vehicle then rapidly accelerated forward and to the left directly towards him and the mother. Mickens reported that as he was walking backwards to avoid the black car, he pushed the mother out of the vehicle’s path of travel. He continued to back up as the vehicle accelerated towards him, and felt that the operator of the vehicle was attempting to strike him with the vehicle. Mickens believed that the individuals in the area, including himself were in imminent physical danger. In response, Mickens drew his duty weapon and fired what he believed was one round towards the black car’s windshield. Mickens reported that the black car continued to move towards him and that as he was attempting to move out of the vehicle’s path, the left front side of the black car struck his right side pinning his right hand between the loaded magazine sources on his duty belt, and the vehicle’s side view mirror. Mickens reported that the impact caused the magazine sources to be ripped off of his duty belt, and his police radio dislodged from his duty belt. Mickens reported that he felt himself falling backwards to the ground and believed that he would be run over by the vehicle. At that point, he fired what he believed were three rounds, which struck the driver’s door. The vehicle decelerated and rolled across the parking lot, coming to a final rest against some curbing. Mickens and other police officers approached the black vehicle and observed the operator upside down on the passenger seat with his head under the dashboard.

The EDMCS interviewed the three William Backus Hospital security guards and Marvarie Blair, Nicasia’s mother. Their versions of the incident were consistent with those of Sergeant Mickens and the initial responding officers from the Norwich police department. Gino Nicasia refused to be interviewed or to provide a release of his medical records.

APPLICABLE LAW

Section 53a-22 (c) of the General Statutes permits a police officer to use deadly physical force upon another person when he reasonably believes such to be necessary to defend himself or a third person from the use or imminent use of deadly physical force. The test to determine reasonableness is both subjective and objective. First, the officer must believe that the use of deadly force is necessary to defend himself or another from the imminent use of deadly physical force. Second, the belief must be objectively reasonable. See State v. Smith , 73 Conn. App. 173, cert. denied, 262 Conn. 923 (2002). The burden is on the state to disprove beyond a reasonable doubt the elements of self-defense as set forth in §53a-22. State v. Smith, supra, 73 Conn. App. at 185-86.

The test is not whether it was in fact necessary for the officer to use deadly physical force in order to defend against the imminent use of deadly physical force. The test is whether the officer believed it was necessary to use deadly physical force and whether such belief was objectively reasonable, based on the facts and circumstances known to the police officer at the time the decision to use deadly force was made. See State v. Silveira, 198 Conn. 454 (1986), State v. Adams, 52 Conn. App. 643 (1999).

The United States Supreme Court has explained this test in a civil rights case.

CONCLUSION

Based upon the preceding facts and circumstance and the applicable law found in Connecticut General Statutes §53a-22 the undersigned finds that use of deadly force by Sergeant Patrick Mickens was appropriate. Sergeant Patrick Mickens reasonably believed deadly force to be necessary to defend himself and third persons, those being the other individuals in the parking lot, from the use or imminent use of deadly force by Gino Nicasia.

I would like to thank the Connecticut State Police Eastern District Major Crime Squad for their role in this investigation. In addition, I would like to thank the Norwich Police Department for its assistance and cooperation.

No further action is to be taken by the Division of Criminal Justice as a result of this incident as it relates to use of deadly force.

Dated at New London, Connecticut this 7^th day of June 2013

MICHAEL L. REGAN
STATE’S ATTORNEY
NEW LONDON JUDICIAL DISTRICT