198 Conn. 77 | Conn. | 1985
The defendant, Joseph Hinckley, was convicted, after a trial to a jury, of manslaughter in the first degree in violation of General Statutes § 53a-55a.
On August 6,1979, the defendant drove to his former wife’s place of employment at a real estate office and knocked on the back door. As his former wife approached the door, the defendant fired a gun at her through the glass portion of the door, the bullet striking her in the chest. The victim staggered back into the office and fell to the floor. The defendant then entered the building and shot the victim twice in the head. The defendant was arrested as he was leaving the scene of the crime.
The defendant was indicted by a grand jury for the charge of murder, in violation of General Statutes § 53a-54a (a). On October 3,1979, he pleaded not guilty and elected to be tried by a jury of twelve. The defendant subsequently notified the state that he would be relying on an insanity defense, as prescribed by General Statutes (Rev. to 1981) § SSa-lS.
Because the defendant admitted that he had shot the victim, the only issue for the jury’s consideration was whether or not he was legally responsible for the act. The court instructed the jury upon the principles of law to be applied in determining the extent of the defendant’s criminal responsibility. The court charged that, unless the evidence established that the defendant was legally sane at the time of the shooting, a not guilty verdict should be returned. The court charged further upon the defense of extreme emotional disturbance, raised by the defendant for the purpose of mitigating murder to first degree manslaughter. The jury returned a verdict of guilty of manslaughter in the first degree.
I
The defendant’s principal claim on appeal is that the trial court erred in its charge to the jury on the issue
A
Ordinarily, the defendant’s failure to take an exception to the charge would render the claim unreviewable on appeal. Practice Book §§ 854, 3063. “Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). “The policy behind this rule is both ancient and sound and ‘does not permit a defendant in a criminal case to fail, whether from a mistake of law, inattention or design, to object to matters occuring during a trial until it is too late for them to be corrected or even considered and then, if the outcome proves unsatisfactory, to raise them for the first time on an appeal.’ State v. Taylor, 153 Conn. 72, 86, 214 A.2d 362 [1965], cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d. 442 [1966]; State v. Evans, supra, 66; State v. Tuller, 34 Conn. 280, 295 [1867].” State v. Baker, 182 Conn. 52, 56, 437 A.2d 843 (1980). The first such exceptional circumstance,
The defendant argues that the instruction implicates a fundamental constitutional right because the issue of sanity was an essential element of the crime charged, on which the state had the burden of proof beyond a reasonable doubt. In support of his position the defendant cites State v. Kurvin, 186 Conn. 555, 442 A.2d 1327 (1982), where the defendant, for the first time on appeal, claimed error in the trial court’s failure to charge that an essential element of the crime of larceny was the intent permanently to deprive the owner of property. We recognized that “[d]ue process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged; Patterson v. New York, 432 U.S. 197, 204, 97 S. Ct. 2319, 53 L. Ed. 2d. 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S. Ct. 1881, 44 L. Ed. 2d. 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d. 368 (1970); including intent where intent is one of those elements.” State v. Kurvin, supra, 558. Therefore, because the deficiency in the charge involved the trial court’s failure to advise the jury of an essen
Once sufficient evidence on insanity has been produced to overcome the legal presumption in favor of sanity, it is clear that “the burden rests upon the state, as it does in all other essential elements in the case, to prove beyond a reasonable doubt that the [defendant] was legally sane and responsible at the time the offenses were committed.” State v. Rossier, 175 Conn. 204, 209, 397 A.2d 110 (1978); State v. Davis, 158 Conn. 341, 355, 260 A.2d 587 (1969); State v. Kenyon, 134 Conn. 43, 49, 54 A.2d 585 (1947); see also Davis v. United States, 160 U.S. 469, 488, 16 S. Ct. 353, 40 L. Ed. 499 (1895); 2 Wright, Federal Practice and Procedure (1982) § 403.
The failure to instruct upon insanity, when a defendant has introduced some evidence on the issue, would be of constitutional magnitude, because such an omission would eliminate the state’s burden of proof on that issue. See Pate v. Robinson, 383 U.S. 375, 384-85, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Blake v. United
Under the Evans standard, we are not concerned with merely technical or prejudicial errors, but only with errors that deprive the defendant of a fundamental constitutional right and a fair trial. The defendant must establish “not merely that the instruction [was]
B
Nor does the defendant’s claim warrant review under the plain error doctrine, because we are not convinced that there was any manifest injustice under all the circumstances of the case. Practice Book § 3063 provides that this court “may in the interest of justice notice plain error not brought to the attention of the trial court.” Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and pub-
II
The defendant also claims that he was denied his constitutionally guaranteed right to assistance of counsel in violation of the sixth and fourteenth amendments to the United States constitution, and of article first, § 8, of the Connecticut constitution. It is undisputed that the constitutional right to counsel is a right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). The defendant alleges that trial counsel’s request to charge, which included previously accepted
In order to establish ineffective assistance of counsel it is necessary for the defendant to prove that trial counsel’s performance was not reasonably competent or within the range of ordinary training and skill in the criminal law, and if it was not, that such lack of competence contributed to the defendant’s conviction. State v. Rivera, 196 Conn. 567, 570, 494 A.2d 570 (1985); State v. Tirado, 194 Conn. 89, 91-92, 478 A.2d 606 (1984); State v. Chairamonte, 189 Conn. 61, 63, 454 A.2d 272 (1983). Because it is difficult to evaluate such claims merely on the appellate record, we have frequently declined to consider them on direct appeal, suggesting that their merits be addressed through a subsequent habeas corpus proceeding or a motion for a new trial. See, e.g., State v. Miner, 197 Conn. 298, 307, 497 A.2d 382 (1985); State v. Lubesky, 195 Conn. 475, 485, 488 A.2d 1239 (1985); State v. Jacobowitz, 194 Conn 408, 413, 480 A.2d 557 (1984); State v. Mason, 186 Conn 574, 578-79, 442 A.2d 1335 (1982). Without the benefit of an evidentiary hearing available in a collateral action, review in this court of ineffective assistance of counsel claims is “at best difficult and sometimes impossible.” State v. Mason, supra, 579. An evidentiary hearing can provide the court with information necessary to evaluate the competency of defense counsel and the harmfulness of any incompetency.
While the defendant recognized at argument this court’s reluctance “to resolve this kind of claim upon a direct appeal rather than after a habeas corpus proceeding where facts and circumstances often not disclosed by a trial transcript can be fully developed and the lawyer who represented the defendant at trial can
Ill
The defendant also claims that the trial court erred by denying his request to change his election of a trial by a jury to a trial by a three judge panel, as provided by General Statutes § 53a-45 (b). On May 13,1980, the day jury selection was scheduled to begin, the defendant made a motion for a change in venue based upon alleged pretrial publicity stemming from an article published two days earlier in the Milford Citizen that discussed the defendant’s trial and his anticipated exercise of the insanity defense. The article outlined the probable expert testimony on the insanity issue and, according to the defendant, misstated the law on the number of witnesses that could testify for the state and the defendant. The defendant in his motion relied primarily on the fact that twenty-nine of forty-one veniremen
The defendant properly concedes that he has no constitutional right to a nonjury trial. Singer v. United States, 380 U.S. 24, 34, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965); State v. Godek, 182 Conn. 353, 362, 438 A.2d 114 (1980). The defendant also admits that he has no statutory or Practice Book right to change his election after his plea has been entered. See General Statutes §§ 54-82 (a), 54-82b (b); Practice Book § 839. Therefore, the defendant has the burden of showing that the trial court abused its discretion in denying his request. State v. Rankin, 102 Conn. 46, 50, 127 A. 916 (1925); State v. Biller, 33 Conn. Sup. 735, 739-40, 369 A.2d 1123 (1976); see Hallinger v. Davis, 146 U.S. 314, 13 S. Ct. 105, 36 L. Ed. 986 (1892). “If the application for such withdrawal be made seasonably, that is, so that the withdrawal will not unreasonably delay the cause, or impede justice, or otherwise prejudice the State, the court should permit it; whether the court shall do so is for its sound discretion . . . . ” State v. Rankin, supra, 50. It appears that the defendant attempted to withdraw his election of a jury trial at the last moment before jury selection was to begin and that his sudden
There is no error.
In this opinion the other judges concurred.
The relevant statute at the time of the incident was General Statutes (Rev. to 1981) § 53a-13 which provided: insanity as defense. In any prosecution for an offense, it shall be a defense that the defendant, at the time of the proscribed conduct, as a result of mental disease or defect lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. It shall not be a defense under this section if such mental disease or defect was proximately caused by the voluntary ingestion, inhalation or injection of intoxicating liquor or any drug or substance, or any combination thereof, unless such drug was prescribed for the defendant by a licensed practitioner, as defined in section 20-184a, and was used in accordance with the directions of such prescrip
See footnote 3, infra.
The defendant conceded in Ms brief that he requested most of the challenged instruction. We have held that error induced by an appellant cannot be a ground for reversal and will not be reviewed. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); State v. Kish, 186 Conn. 757, 769, 443 A.2d 1274 (1982). Because we hold here that the defendant’s claim is not reviewable as an “exceptional circumstance” under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), it is unnecessary for us to consider the problems that may arise when a criminal defendant induces error that truly involves the deprivation of a fundamental constitutional right and a fair trial.
It is important to note that Public Acts 1983, No. 83-486, enacted after the trial of the present case, modified Genera! Statutes § 53a-13, making insanity an affirmative defense, which, under General Statutes § 53a-12 (b), must be proven by the defendant by a preponderance of the evidence. See Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); Rivera v. Delaware, 429 U.S. 877, 97 S. Ct. 226, 50 L. Ed. 2d 160 (1976); Leland v. Oregon, 343 U.S. 790, 72 S. Ct. 1002, 96 L. Ed. 1302 (1952); cf. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).
In both State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984), and State v. McCall, 187 Conn. 73, 444 A.2d 896 (1982), we held that, although the trial court improperly charged the jury with statutory as well as common law definitions of insanity, any error was subsequently rectified by an additional instruction that included only the statutory definition.
Although not mentioned in our opinion in State v. Toste, 178 Conn. 626, 424 A.2d 293 (1979), an examination of the briefs and trial record establishes that the defendant excepted to the charge as given.
This court also had the opportunity to address the issue of reviewability of insanity instructions in the absence of a timely objection in State v. Cohane, 193 Conn. 474, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984). Because we ordered a new trial on other grounds we did not address an issue similar to the one before us here, involving the intermingling of statutory and common law definitions of insanity. We did recognize, however, that “it is reversible error for the trial court to instruct a jury by reference to any superseded tests for insanity . . . provided the defendant properly excepts to the instruction.” Id., 480 n.5.
General Statutes § 54-84 (b); see State v. Sinclair, 197 Conn. 574, 500 A.2d 539 (1985); State v. Tatem, 194 Conn. 594, 595, 483 A.2d 1087 (1984).
The defendant also asserted in support of his motion for a change in venue that the facilities in the Ansonia-Milford courthouse were inadequate to accommodate a murder trial with a twelve person jury. The defendant also made a challenge to the jury array because there was a disproportionate number of jurors from the town of Milford on the panel. This motion was also denied by the court.