28 Conn. App. 825 | Conn. App. Ct. | 1992
The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3).
The jury could reasonably have found certain facts. The defendant and the victim had an argument, during which the defendant threatened the victim with a fence picket, which ended the fight. Subsequently, the defendant drove off with some friends.
The defendant’s first two claims involve § 53a-55 (a) (3). He argues that § 53a-55 (a) (3) violates his due process rights because it is unconstitutionally vague as applied to him. He also challenges the trial court’s failure to define, in its instructions to the jury, the terms “extreme indifference to human life” and “grave risk of death,” which are used in the statute.
The defendant concedes that he did not raise the claim of a due process violation at trial and, therefore, seeks review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). He argues that the failure of the legislature to define the terms as used in the manslaughter statute fails to give him fair warning of the effect of the statute and fails to provide a sufficient guarantee against arbitrary enforcement. The defendant’s failure to raise the constitutionality of a statute at trial, or to object to the instruction given,
The defendant’s testimony is relevant to a resolution of this issue. He claimed that on the evening of the shooting, the victim came looking for him at his sister’s apartment. The victim and the defendant struggled for a gun that the victim had brought with him. The defendant gained possession of the gun and then requested that the victim leave. The two men went outside and the victim refused to leave without his gun. The defendant turned to walk back into the apartment building and the victim ran toward the defendant. The defendant then turned and fired two shots at the ground near the victim’s feet. The victim stopped. The defendant again turned to walk into the apartment and the victim again ran toward the defendant. The defendant turned and again fired two shots at the ground near the victim’s feet. The victim stopped. The defendant turned for a third time to enter the apartment. The victim again approached the defendant. This time, however, the defendant lost his balance when he turned toward the victim, and the gun went off, fatally wounding the victim.
It has long been held that a “ ‘charge should be read as a whole. . . . The whole charge must be considered from the standpoint of its effect on the jurors in
In State v. Spates, 176 Conn. 227, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979), the defendant claimed that the trial court’s failure to define the term “extreme indifference to human life” for the jury required a new trial. The court’s instructions, which defined the term for the jury by stating that it meant more than “mere carelessness” or “ordinary recklessness” and also charged the jury extensively on the meaning of “recklessly,” were upheld. Id., 236-37. Likewise, in State v. Bunker, supra, 325-27, which involved similar statutory language found in General Statutes § 53a-59 (a) (3),
Our review of the record in this case shows that the court instructed the jury on the statutory definition of “recklessly.” No definition of “extreme indifference to human life” is found in the penal code, title 53a of the General Statutes, and the court did not define the term. In carefully instructing the jury concerning the difference between manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) and manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (l),
The defendant also challenges the trial court’s failure to define the term “grave risk of death.” The defendant offers no analysis of this aspect of his claim nor has he suggested, in light of the evidence, that the phrase was used in anything other than its ordinary meaning. See State v. Maresca, 173 Conn. 450, 460-61, 377 A.2d 1330 (1977); State v. Bunker, supra, 328-29.
The trial court’s instructions, when viewed as a whole, reveal that the jury could not have been misled by the lack of a statutory definition. The jury reasonably could have found, even if it accepted the defendant’s testimony as true, that the defendant’s behavior evinced “extreme indifference to human life” and recklessly created “a grave risk of death to another person.” Repeatedly firing a loaded gun in the direction of another person, even at the ground, in a populated area exhibits behavior plainly within the intendment of General Statutes § 53a-55 (a) (3). The court’s instructions gave the jury “a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.” State
The defendant’s final claim is that the trial court improperly refused to admit certain testimony regarding the victim’s threats to kill the defendant. The defendant attempted to present the testimony of Andrea Cunningham regarding certain threats made by the victim. Cunningham visited the victim at the hospital some time after the shooting and before his death. During one or more of those visits, the victim allegedly confirmed to Cunningham that he had intended to kill the defendant on the day of the incident. The state objected to this testimony on grounds of hearsay and relevance. The court refused to permit the challenged testimony because there were no indicia of reliability since the defendant’s counsel indicated that the victim could not talk after the shooting and could only nod his head in response to statements made by Cunningham, and because the testimony was cumulative. On appeal, the defendant claims that the evidence was relevant and corroborated testimony that the defendant’s actions were in self-defense. The defendant asserts that the trial court should have admitted Cunningham’s testimony (1) as a statement against penal interest, (2) as hearsay falling within the catchall exception to the hearsay rule, or (3) as non-hearsay testimony offered not for the truth of the matter asserted but only to show the effect that this information had on the defendant’s state of mind.
Cunningham had already testified that the victim, prior to the shooting, had expressed to her his desire to kill the defendant. Additionally, the defendant himself had testified that the victim had directly communicated such an intention to him during their confrontation
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”
We note that not only did the defendant not object at trial to the instruction given regarding General Statutes § 53a-55 (a) (3), but he affirmatively requested that the court instruct the jury as to this lesser included offense.
In Bunker, the crime in question was assault in the first degree in violation of General Statutes § 53a-59 (a) (3). Like manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3), assault in the first degree requires proof of reckless conduct that creates a grave risk of death to another person “under circumstances evincing an extreme indifference to human life.” The only difference between § 53a-55 (a) (3) and § 53a-59 (a) (3) is that the former requires the conduct to cause the death of another person, whereas the latter requires the same type of conduct to cause serious physical injury to another person. See State v. Bunker, 27 Conn. App. 322, 326-27, 606 A.2d 30 (1992).
General Statutes § 53a-56 (a) provides in pertinent part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”