*1 v. Jonathan Miller Connecticut Peters, Healey, Parskey, Shea, Armentano Js. January April Argued —decision released *2 public with Kats, assistant defender, Joette public on the was err old H. Barnett, J whom, brief, (defendant). appellant for the defender, attorney, M. state’s Massameno, John assistant M. on the were Francis brief, with whom, attorney, E. and Paul Jr., state’s McDonald, Murray, appellee attorney, the assistant state’s (state). appeals J. The defendant Armentano, degree in the first in violation of assault
conviction (a)(1), he 53a-59 for which nor than nine to term of not less was sentenced years. eighteen admits The defendant more than Naugatuck having the outside to “shot” the victim Valley Waterbury IT, on December inMall handgun. At he claimed trial, with a .38 caliber accidently, handgun discharged that either the defense. he in self acted follow- found the have could defendant, the
ing December facts: On Dwyer, Saunders, and Selena friend, his Winston Naug- traveled girlfriend defendant, who sister Valley visit Saunders’ Mall to atuck arriving at after Soon at a mall store. worked boy- a former they victim, encountered mall, to the introduced whom she Saunders, friend of victim FolloAving encounter, brief this men. subsequently fol- threesome, departed from at lowed them around the mall a distance. After a approached time the victim defendant and asked “step outside” the mall him him with because the “disrespected” presumably by defendant had him, Dwyer dating In Saunders. front of Saunders, spoke loudly pair some onlookers, one request repeating the victim another, the mall defendant leave with and the defend- him, refusing request. ant After a few minutes the briefly Dwyer away stepped defendant and from the pos- during which time took others, *3 Dwyer’s handgun. .38 caliber The defend- session of concealing gun his hand within the ant held the in length wearing. coat was He he folds of the knee by accompanied followed the victim outside then Dwyer, and some of whom onlookers, Saunders, Shortly may after been friends of the victim. have leaving in the the defendant shot the victim mall, carrying. victim the with he was head shooting the vic- armed. As a result was not through time of in a state tim semicomatose was recovery. hope He a had been scant trial, with lightweight professional boxer. degree, charge prove the first of assault in
To prove, beyond required a reasonable to the state was with intent to cause defendant, doubt, injury person, physical to another caused serious deadly weapon injury by a dan- or means of such gerous 53a-59 General Statutes instrument. dispute (a)(1).1 that his does not The defendant injury physical aof means acts caused serious deadly weapon. “(a) A part: in pertinent provides 53a-59 degree With intent (1) in guilty of assault first when: person is person, causes such injury to another he
to serious cause deadly of a person by means person injury or to a third such disfigure intent dangerous instrument; (2) weapon with or a The defendant claims the trial court erred on the of self in elements (1) charging two defense in intent two respects, specific defendant’s and on the respects, credibility his motion to testimony; prevent (2) denying credibility state from the defendant’s impeaching convic felony evidence introducing prior tion; and to question the state (3) permitting defendant on cross examination regarding prior gun ownership.
I
Jury
Instructions
The defendant’s
of error
in the jury
claims
In
arise for the first
time on appeal.
order
a claimed
properly
appeal
preserve
error in the trial court’s
to the
charge
jury,
party
given
must
when the
take
exception
grounds
states the
and the
distinctly
objection
(c)
therefor.
Practice
3060F
Book
§§
Nerkowski,
*4
523,
;
520,
184 Conn.
(1),
(2j
person seriously
permanently,
destroy, amputate
another
or
or to
permanently
organ
body,
disable
member or
he causes sueh
injury
person
person;
(3)
to sueh
or to a third
under circum-
evincing
recklessly
stances
ho
extreme indifference to human life
engages
person,
in conduct which creates a risk of death to another
thereby
injury
person.”
causes serious
to another
2The
state asserts that
this court should decline
address
evidentiary rulings
claims
error in the
the defendant
because
specify
issues,
preliminary
failed to
his claims in his
statement of
required by
infirmity
as
3012(a).
Practice Book
We
the same
note
jury instructions,
in the defendant’s
in
were
claims
error
which
generally
jury.”
claimed as
in trial court’s instruction to
“[e]rror
Although
appeal;
this court is
not bound to consider these claims
Cannon,
(1981);
v.
260,
n.9,
State
185 Conn.
658
(1981);
Topciu,
1,
This
subsequent
arising
thereto.
at trial and not
raised
E.g.,
185
Delafose,
v.
§3063;
Practice Book
State
(1981);
v.
158
441 A.2d
State
Evans,
67,
61,
State
are considered waived.
Such claims
error
exceptional
Only
supra,
most
Evans,
v.
even
con
will This court consider
circumstances
properly
and decided
claim not
raised
stitutional
Book
State
§3063;
in the trial court. Practice
(1982);
State
Gooch,
545, 560,
Exceptional
stances are
when
new con-
only
a
presented
(1)
stitutional
foreseeable
arises
right
readily
between the time of trial and of
appeal;
(2)
record is sufficiently
a claim
complete
support
the defendant was denied a fundamental
con-
Evans,
stitutional
and a fair trial.
v.
right
Gunning,
State 70;
supra,
see, e.g.,
Trent,
State
The defendant asserts that each of his claims error in the presents exceptional circumstances under the second of the Evans tests. to determine will reach Accordingly, whether we merits each we will examine whether claim, question a fundamental constitutional poses Gooch, dimension. supra,
A The defendant claims two errors on the elements of self defense. The defend- ant first asserts that the trial court erred giving than definition dictionary, rather the statutory, force.” General Statutes “deadly physical self 53a-19 establishes (a) justification § on whether defense in different terms depending or the force is used the victim deadly physical defendant. when to retreat arises Moreover, duty used. deadly physical force is to charge 53a-19 no (b).3 Although request provides: Except provided “(a) 3 General Statutes 53a-19 as justified using (b) (e) person reason subsections person able force himself or another to defend person
a third the use or what he believes be *6 on the and the appears record, defendant did not take to this of exception aspect charge,4 him defendant asserts this error denied guaranteed due law fifth process by the fourteenth amendments to the United States con- and the constitution stitution, of Connecticut, A article fundamental element due first, § is the of a right defendant with process charged Texas, Washington to a defense. crime establish Ct. L. Ed. 2d 1019 388 U.S. 87 S. 14, 19, Bethea, This fundamental constitutional right 6 (1974). may degree physical force, and he such of force imminent use of use necessary purpose; for sueh reasonably he believes to be which may deadly not used unless the actor except physical force be person using or to (1) is about believes that such other great inflict force, inflicting about to deadly physical (2) or or use bodily harm. person Notwithstanding provisions (a), a (b) of subsection person upon using deadly physical another justified not force is necessity using such force with he that he avoid the if knows can not by retreating, except the actor shall complete safety (1) in section dwelling, as defined required if is in his to retreat he be if he aggressor, or not the initial place of and was 53a-100, or work at assisting peace officer such peace private person or is a officer by 53a-22, (2) surrender- acting pursuant section or direction, and right asserting claim of property person to a possession of ing abstain complying with a demand that he thereto, by (3) or obliged perform. he is not performing act person (a), a provisions of subsection Notwithstanding the (c) to cause (1) with intent using physical force when justified in is use of person, provokes the he to another injury or death physical aggressor, the initial person, (2) or he is other sueh physical force under sueh person another physical force except use of that his encounter he from the justifiable if withdraws circumstances so, do his intent person other to sueh effectively communicates threatens the notwithstanding continues or person other sueh was the involved physical force (3) force, use specifically authorized by agreement not a combat product law.” charge on self exception to take an did appeal. in this grounds on the asserted defense, but not includes instructions on proper the elements of *7 self defense so that ascertain whether jury may the state has met its burden of beyond proving reasonable doubt the assault was not justified. See General Statutes 53a-12 we Therefore, (a). § under Evans will consider the merits of the claim and the defendant’s second claim of error with to the self respect defense instructions.
General Statutes
53a-3
that when
(5) provides
§
the term
force”
in the
“deadly physical
is used
Connecticut
code it “means
penal
force
physical
which can be reasonably
to cause death or
expected
serious physical
After
injury.”5
the statu
stating
tory elements of self
the trial eourt defined
defense,
force”
“deadly
as “that
or
force
is liable
certain to cause death.”
“A
to the
will
charge
not be critically dissected for the
of dis
purpose
covering possible inaccuracies
statements,
is to be
charge
as to its
considered,
rather,
prob
able effect
in
them to
cor
guiding
Cannon,
rect verdict
in the case.”
Conn.
260, 269,
see,
A.2d 927 (1981);
e.g.,
Perez,
substantial or which causes serious impairment impairment serious of health or serious loss bodily any organ. . function of . .” General Statutes 53a-3 given defend- the instruction favored the
Moreover, which is “liable or certain cause ant because force in would be more as death,” stated prove reason- “force which can be difficult to than ably expected death or serious to cause injury,” required the statute. as error in the trial The defendant also claims duty instructions on the to retreat to avoid court’s using deadly physical force self defense. General (b) part per provides 53a-19 “a deadly justified using physical force son is not *8 person if he that he can avoid another knows necessity using complete the such force with safety (1) retreating except . . .” under cir (Emphasis added.) relevant here.6 cumstances not quoted provision its court from this The trial charge, original charge. court in that the trial Later duty to that referred to the retreat in instruction says per possible “[t]he the that if feasible, law or away get from son should retreat and attacked returning ground standing and there before ain was included force with force.” This statement distinguishing defensive force discussion 7 retaliatory period punitive After or force. 6 in footnote 3. See General Statutes 53a-19 set out 7 following duty The trial court to retreat in the included the measures, said, as I “The that the defensive context: law stresses force, retaliatory. The force used must be a defensive must never be possible says if or reprisal punishing not a or a force. The law that away from feasible, person get and the attacked should retreat ground returning with force. standing his force there before you yourself: defendant, “So, you ask if follow the claim of the measures, fending off proper measures, did he the the take defensive ground did take protect himself; give or or he did he retreat retaliatory reasonable stronger or measures not measures some some attack; the measures light of that were how reasonable question and the defense much for he took. So offense of self-defense.” was raised
663 clarification of the jury requested deliberation, In its sup in self defense. weapon use of a deadly essentially repeated plemental trial again quoted court earlier instructions, the use of to avoid duty statutory provision he if the defendant knew force deadly physical Stat safety; complete could retreat with did not its earlier repeat (b); utes 53a-19 do feasible” retreat. We to “possible reference would rea tbink to the duty reference general modify understood be sonably were they properly in which statutory language California, 18, 386 U.S. See Chapman instructed. denied, reh. L. Ed. 2d 705, 824, 87 S. Ct. 26, 24, L. Ed. 2d 241 (1967); S. Ct. 1283, 18 386 U.S. 987, A.2d 1077 Rose, 683, 687-88, 169 Conn. State, Aillon (1975), aff’d, instructed correctly was The jury original in both the statutory language trial court stressed and the charge, supplemental self of disproving had the burden the state Therefore, doubt. a reasonable defense beyond *9 in the charge. no error there was
B the jury in two errors claims The defendant serious to cause of intent on element charge Statutes General to another person. injury physical self on the instructions Like 53a-59 (a)(1). not were properly of error claims these defense, court, This the defendant. trial by at preserved Evans under the claims review will however, consti- the state’s clearly incorporate they because a crime element each to prove burden tutional Winship, In re E.g., doubt. a reasonable beyond Ed. 2d 368 L. 90 S. Ct. U.S. 358, as defined degree the first Assault beyond 53a-59(a) (1), requires proof physical intent to cause serious doubt of reasonable law the common Unlike to another person. injury requires proof this crime statutory assault, crime of degree a serious intent to achieve of the specific Bitting, injury. aas defined statutorily Intent is . . . result ... to cause [a] objective “conscious 53a-3 (11). General Statutes § intent the trial court stressed In the that the defendant inten- must that the state prove to the victim. injury cause serious physical ded to that that intent means “simply The court specified must have acted with consciously the defendant after giving such harm.” causing Then, objective the court on self defense, intervening that the defendant claimed the jury instructed had was an “not shooting accident, designed, of human derogation not intended, life, not It if some- accident on that score. is true pure unforeseeable acci- is killed body completely fault or improper out of the without dent, blue, then he motive or handling firearms, improper accident, on that defense of so And, pure guilty. closely: to examine you very I am ask going to time, with him he have at did why motive, that gun if he took for an improper because accident whether to shoot then victim], pure [the solely If he it over brought is out of the picture. no and, through himself the purpose defending on his or part of his improper gesture fault *10 went assault on off part, his improper then accident, you may complete some through this defense. accept have the before
“So, you question of deter- you will take various mining, first, you up elements of the crime of Assault in the First Degree and determine whether or not the State has proved and those elements then will take you ques- up and tion self-defense accident, questions jus- If find tification. those you course, proven, then, verdict be not either your will one those guilty, after a proven.” Upon request period trial court deliberation, essentially repeated its on the definition of charge intent, including did not on its acci- intent, repeat dent. evidence of accidental principal discharge
was the defendant’s at which con- testimony trial, tradicted a statement he made to the prior police that he had the victim had “fired the “shot” and The defendant first raised the issue of acci- gun.” dent cross-examined when the state him, counsel did not assert accident as a defense intent before that testimony.
The defendant first claims the accident transformed assault from a intent specific crime to intent general crime, requires the state the defendant intended to do prove to return act, permitted guilty verdict a concurrence of intent with without finding the act of both of which shooting, deprive of his due right present process defense. unlike self is not a Accident, defense, jus- has met its tification for a crime. Unless the state beyond burden of each element of the crime proving jus- on the issue of a reasonable no finding doubt, however, accident, tification An necessary. Law (1934) intent. Criminal negates Miller, have would been Accordingly, 53(e), p. *11 more accurate for the trial court to have included discussing on while accident the ele- departure of This ment intent. from the ideal charge organization of the does not rise to the level jury of error because not constitutional the could necessary have found the intent for discharge guilty of verdict if it also found that the gun was accidental. charge aspect on Another of accident was not reversible dimensions. erroneous but does reach charge considered isola- If the accident were guilty permit jury return a to tion, would finding upon had an that the defendant verdict possession improper of the motive when he took gun, gun, improperly handled the or carried any purpose self other than outside for by any action was followed when such defense, discharge gesture resulting improper of the gun. Although intent, to these factors are relevant finding required of is a substitute none injury specific serious intent cause gun. discharge of the at the time the victim (1972) § 29. Criminal Law Scott, See LaFave & by the trial court’s statement error is not cured This improper implies “whether that the motive is victim]” [the statement because shoot posses- at the time he took referred to motive gun, must the time the not sion of finding specific intent. focus appellate purposes these review, however, For isola- are not considered erroneous instructions part in its are considered as tion, entirety. other if cured not Because error, unconstitutionally deprive the would instructions, process must consider we law, of due proving the has met its burden the state whether the error reasonable beyond harmlessness could by establishing pos- donbt instruc- have been misled the erroneous sibly *12 tions.
The trial court instructed repeatedly state must intent a rea- beyond prove requisite intent. sonable defined that and doubt, properly Any confusion that have resulted from the may original cured charge was supplemental on charge intent. Under these we circumstances, are satisfied the state has met its burden harmless establishing error. in the defendant’s second claim of error intent is that the court’s instruction that
“[ejvery person
to intend the natural
presumed
of his
uncon
necessary
consequences
acts,”
shifted the burden of
to the
stitutionally
proof
on intent and invaded the fact-finding
Montana,
Sandstrom v.
province
jury. E.g.,
442 U.S.
99
L. Ed. 2d 39
510,
S. Ct.
61
524,
2450,
(1979); State v.
Pina,
186
440 A.2d
263,
Conn. 261,
967
(1982). Because this instruction implicates
denial of a fundamental
to due
and a
right
process
v. Montana
fair
Sandstrom
decided
trial,
was
after
the. trial
this court will
present case,
consider
the claim
it was not
although
properly
State v.
Cosgrove,
preserved
186 Conn.
appeal.
on,
Turcio v. Mans
476, 482-83, 442
(1982);
Gun
439 A.2d
1, 4,
(1982);
v.
ning,
No would be served purpose by repeating reasoning for the rule that a conclusive presump- tion find intent requires criminal jury of the act is proof e.g., unconstitutional. See, State v. Montana,
Sandstrom v. 517-18; suipra, Pina, Manson, Turcio supra, 263; supra, interpreted have Whether could be decided as unrebuttable must presumption Sand the entire charge. E.g., consideration of Truppi, strom Montana, supra, 514; denied, cert. 449, (1980), 2d 329 L. Ed. 451 U.S. 101 S. Ct. Vasquez, 242, 247-48, In considering charges 438 A.2d similar has not found reversible error as a this court whole, when the court defined the presumption trial clarified that decides terms and permissive intent beyond whether the state has criminal proven *13 State Pina, doubt. State a reasonable v. 264; supra, A.2d 918, 439 Stankowski, 121, 150-52, v. 184 Conn. 596, 70 denied, 1052, cert. 454 U.S. 102 S. Ct. Brokaw, State v. Ed. 2d 588 (1981); L. Maselli, State v. 182 438 A.2d 29, (1981); 815 34, denied, cert. 66, (1980), Conn. 437 77-78, Ed. 2d U.S. 101 S. 66 L. 807 449 Ct. 1083, 868, Arroyo, 178-80, 180 find for distin no basis We the case. in the guishing present
C in The defendant next claims error the trial court’s should consider instruction of the trial defendant’s interest outcome his assessing of credibility testimony. the defendant did not take an Although exception this asserts to he instruction, deprived innocence, of of presumption him due law, deprived process depreciated to there- his his own defense right testify and, should to this court under subject be review fore, by Evans. On several have considered occasions we do not held that they have similar right. E.g., constitutional a fundamental implicate Kurvin, State v. Mastro- 74; State Maselli, supra,
(1982); petre, 276 (1978). 400 A.2d to this claim decline consider Accordingly, we Kurvin, supra, error.
n Evidentiary Rulings
A erred in the trial court The defendant claims that motion the state prevent to denying testimony of his credibility impeaching conviction based of a evidence excluding carrying pistol guilty August 11, plea in violation of January, a permit without General Statutes 29-35.8 See General Statutes to exception noted an The trial court 29-37. the defendant ruling, ruling. Subsequent direct exam during conviction prior testified object and did counsel, defense ination the conviction. regarding cross-examination con the prior court instructed trial *14 only for be considered should viction evidence credib of the witness’ assessing limited purpose ility.9 8 Sep of a Although exclusion also denied defendant was conduct; 25, disorderly General of
tember 1975 conviction peace; of the 53a-182; July 15, of breaeh a 1974 conviction was convictions 53a-181; of these neither one General Statutes subsequently introduced at trial. “Now, gave following instructions: 9 The trial court felony. The convicted of a has that he has been accused admitted Weapon Carrying particular felony was of a here that involved you to consider as are entitled Without Permit. That evidence pro- affecting that credibility his as a have a statute witness. We
670 of a credibility
“It is well established convic may by witness be of impeached proof prior of tions crimes for be imprisonment may Townsend, year.” State more than one v. 167 Conn. 356 A.2d cert. 423 539, 563, 125, 846, U.S. denied, 96 46 2d 84, see, e.g., S. Ct. L. Ed. 67 Gen (1975); 2-145; Manson, Colton v. 463 P. eral Statutes 5 10 Shaw, State 185 1252, 1254 (D. 1979); Conn. Sup. cert. 372, 383, denied, Conn. (1981), 454 102 Ct. 71 Ed. 2d 312 U.S. S. L. Bitting, 162 291 A.2d 1, 8-9, (1982); Marquez, 47, 52-53, (1971); A.2d 689 The trial court is permitted discretion of fixing wide the limits cross- on the examination, particularly credibility. issue of See State DeSantis, 545-46, v. Croom, The court exclude may person disqualified no of vides that shall as because be a witness crime, of may conviction but that such conviction shown to affect be credibility, is, you testimony. his or not whether will believe fact a witness convicted of was a crime then does not dis- qualify him as a witness and should in that not be considered light you. law, course, At common persons who have been required—were qualified convicted felonies were not to be witnesses at all. The that I statute have to has been con- referred strued to have as purpose persons its to make who have been con- victed of competent felonies witnesses. It is intention not the of the such, legislature to persons make necessarily entitled to full credit. “The crime of. which this accused felony. admits conviction And, theory type law is that crimes of the mentioned involve certain traits of person’s character which affeet would general credibility. Consequently, the fact of is one the conviction you facts to take consideration, any into along with other facts, material in determining his credibility, credibility whieh you will accord to the as accused a witness.” 10 provides: Statutes § 52-145 person “No shall be dis qualified as a any witness in action reason of his interest in the event same party as a otherwise, or of his disbelief in the supreme existence of a being, or of his of crime; conviction such interest or may conviction be shown for the purpose affeeting *15 his credit.” when conviction evidence a prior impeachment outweighs far of the evidence the prejudicial impact Bitting, v. 9-10. supra, value. its probative court’s ruling the trial This court will not disturb as concluded it not have unless could reasonable every presump- we make did, it because Bitting, State in of its correctness. tion favor State Shaw, supra, 384; see State 11; supra, Jones, motion ruled on the defendant’s the court
Because waive did not the defendant testified, before he to the prior testifying error right to claim examination, presumably direct conviction during Jones, 236; supra, See tactical maneuver. v. Hall 605-606, 345 claim, the the merits respect With did not abuse hold the trial court however, we in the motion. discretion defendant’s its denying the conviction, the The facts underlying in were time, not remote concedes was at in both Although not elaborated trial. conviction, crime charged prior a significant was carrying handgun defendant’s defend- as the factor, necessarily follow, does not of the admis- ant that the claims, prejudicial impact of the far value probative sion outweighed defend- credibility conviction to impeach testimony. foregoing In view of ant’s the jury’s use limiting the careful trial court was conviction prior evidence, the defendant’s motion. correct denying
B court’s error defendant claims Finally, on cross- to a question of his objection overruling In order ownership. examination about prior *16 672 these claims for
properly preserve review by court, the should have taken an exception to the ruling objection court’s to the intro duction of the evidence. 288, See Practice Boo k State 3060F Shaw, 186 438 (c) (3); Conn. 45, 48, v. Hoffler, A.2d (1982); 872 452, 389 Colton, A.2d 1257 174 (1978); 135, 137-38, aff’d sub (1977), nom. Colton v. Manson, 463 F. Sup. (D. Conn. Roy, State 1979); 35, 51-52, 376 Johnson, Because this failure to with comply the rules of completely practice, claim is not nor has properly preserved appeal; the defendant asserted that claim is reviewable under Evans. we decline to Therefore, address merits of claim. Practice Book
There is no error. Parskey In this opinion Peters, Js., Shea, concurred.
Arthur H. J. I Healey, concur (concurring). with the result reached I majority. write I separately because do not as the agree, majority states, if that relating portion to accident “were considered in it isolation,” would permit jury to return verdict guilty finding that “the defendant an had improper motive when he took possession of the gun, improperly handled carried gun, outside for gun any other than self purpose defense, when any such action was followed improper gesture result- ing discharge the gun.” The court charged relevant as part follows: so on defense “And, I am pure accident, you very closely: why going to ask examine did gun if he have that with him at the because time, improper took that for an whether motive, he pure [the then accident is out to shoot victim], brought solely picture. If he for the over *17 through purpose defending himself no fault and, improper gesture part improper of his or part, through gun on his off some assault went you may accept complete accident, then this portion charge, I believe even defense.” this nothing allows to do more isolation, they out than rule the defense of accident if found improper the defendant took the with an portion I do not of the motive. believe that this reasonably permit could be understood to guilty assault to find certainly merely upon showing. can There such a finding quarrel proposition no with the that a be injury to specific intent cause serious necessary person guilty of find the victim is (a) 53a-59 this crime. 392 A.2d Robinson,
State v. just court’s do not believe I understood be here could find requirement. I Therefore, would dilute that portion with this error, harmless error, no charge. G. Eldridge al. Yost et Inc. Appliances, Hennessy, Js. F. Healey, Parskey, Peters, Shea