*1 hеed of the further take court’s comment We was made at the end the trial: counsel which I compliment “I think for the record would like to and Mr. defendant’s Goldberger both state [the case, trial for the efforts into this both put counsel] and on the on behalf of State Connecticut job Mr. had a difficult Goldberger very defense. case, this as a defender special public perform in view of the attitude and conduct especially and inten the defendant himself who has wilfully tionally absented himself from this trial.”26 defend- with the state’s claim that “the agree
We has that his ant demonstrated trial any way or that he failed to display counsel was incompetent ordinary by lawyers competence displayed skill in criminal law.” training and There is no error.
In this the other concurred. judges opinion Jr. Shaw, James Connecticut Healey Armentano, Js. Bogdanski, J., Speziale, Peters, C. trial, failed defendant, present in court for the who was resulting thereby case, its appear in after state rested court appearance bond. forfeiture of in a
Argued August 18, June 5decision released Richard Emanuel, with public defender, assistant Barnett, H. was Jerr old on the whom, public brief, for the defender, (defendant). appellant Lager, Linda K. assistant state’s attorney, Maride, Arnold state’s on the whom, brief, were Thomas O’Keefe, and assistant state’s attorney, for the attorney, (state). appellee J. After a trial to a the defend- jury Speziale, James convicted first ant, Shaw, Jr., degree assault in violation Statutes of General 53a-59 The defendant (a) has appealed rendered the fol- judgment claiming thereon, lowing as error: the trial court’s failure, (1) its instructions self-defense, charge on jury had no requested duty defendant that greater-than- in the heat necessary may be when employed the trial court’s denial of the passion; (2) defend- motion in limine and subsequent ant’s admission of the defendant’s conviction for manslaughter prior the trial impeachment; court’s purposes and, (3) denial of the motion to strike defendant’s the testi- and its of the mony eyewitness denial defend- ant’s motion for mistrial. find no error. "We the defendant against information arose incident: from the Shaw one of following rented two in a house owned and bedrooms occupied *3 assaulted. the kitchen of he Off Wilson, this to leading bedrooms, house were dоors to both a the back hallway, to the and to door— bathroom, the common area fire called Shaw to Wilson escape. an argument escalated to house; discussion and and Wilson Shaw physical altercation; then tussle. the other initiated each claimed that to and his .30-30 grabbed went his bedroom Wilson he testified, intention, rifle with Winchester to his bedroom to Shaw went leave; to order Shaw they in .22 Weapons hand, and revolver. got bed- respective the kitchen from their both entered or six shots fired five defendant, Shaw, rooms. three times. hitting Wilson
I Change Juey Sele-Deeense on the defendant charge to request his written In the jury, to instruct the trial court requested actually Shaw that James “[i]f relevant part, that to believe grounds had reasonable and believed use to physical or about using Andrew Wilson bodily inflict great or about inflicting or was force was deadly and him, physical on harm Shaw was James danger, such repel necessary to retreat required or to consider whether he could retreat. He safely was entitled to stand his ground and to use such force as was reasonably under necessary the circumstances to savе his life or to protect himself or others from serious bodily harm.
“I should note that the claim of self-defense is not defeated if necessarily greater force than would have seemed necessary retrospect was used by James Shaw in the heat of passion generated assault him. A belief be may unreason- able in retrospect actually reasonably entertained in the heat of passion. For example, there was testimony here that both James Shaw and Andrew were Wilson engaged a verbal and physi- cal argument to the prior display any weapons.
“I wish to emphasize that the laws of the State of Connecticut do not require an individual to avoid the use of deadly physical force if he is attacked in his own dwelling. There was testi- *4 for mony, example, this that case, James Shaw resided at 192 Cedar Street and was a tenant legal of that premises.”
The trial court, its however, instructions to the on jury self-defense did not charge as requested the defendant had no to duty retreat in his and that force greater-than-necessary may be employed when in the heat of passion; but, it instead, instructed on jury self-defense follows: “Now, just what is which the self-defense, State must disprove here? Well, you, course, heard all of the and our evidence, statutes recognize that a can person use force in defending himself, and one section of our statutes reads as follows: ‘A is person justified in using reasonable physical upon person
force another to defend or a himself, reasonably person, third from what he believes to the use imminent—the use or imminent be use of may degree physical he such and use force force, reasonably necessary he believes to be for deadly physicаl purpose, except that such reasonably not be used unless actor believes that using deadly person other is or about to use, such great inflicting, physical or about to inflict, force, bodily harm.’ regardless provisions just of those that I
“Now, justified you, using not read to is deadly deadly—in using physical force another necessity person if he knows that he can avoid the using complete safety force with retreat- such required ing, except that the actor shall dwelling. he is in point, your I attention at this would call “Now, according testimony that that, to the would indicate statutory both Mr. definition, to another Wilson dwelling. just in their I don’t Now, Mr. Shaw were give them the think that that statute was meant to right, It to retreat. would both of refuse them, dwelling, parties where both are in their me, seem in connection with the retreat must be considered question of self-defense. How much force neces- way. physical sary? It can be taken in a Retreat appar- also be taken to mean desist. Here it, can yourself removing ently, physically from the means premises, of force, it in this use but involved also, degree you desisting of force idea of when the *5 necessary. using, longer is no have been just you, that I from these statutes read to “Now, being you a that who is assaulted, can conclude man, reasonably he to or who believes is about be degree may use such in a assaulted, force such as reasonably necessary he believes is for his defense. steps The moment he over and uses more the line reasonably necessary, than force believes is then he wrong guilty he becomes a doer and becomes of a The test is force was actu- crime, himself. not what ally necessary protect the to himself from user or imminent but the test force, user of rather is what acting did as force a reasonable believe to he, man, necessary circumstances; be under and, proving has the that course, the State burden you may he such force as find was violence, used, or justified. not has that burden burden, The State disproving self-defense. determining “Now, this means then that in whether or not excessive we not used, force was do hindsight proposition. question have a is what reasonably necessary did Mr. Shaw believe you may they pre- under the as find circumstances sented to him.” themselves degree governs
General 53U-191 Statutеs justified using person force which is in to defend a person. may “deadly physical his use force” One physical in force See. 53a-19. use of “[General Statutes] person, (a) Except (b) defense of provided as in subsections person (c) justified using physical force is in reasonable person he person another himself what to defend or a third force, reasonably physical use or use of believes to be the imminent reasonably may believes degree and he of force he use such necessary deadly physical force purpose; except for such that person other that such reasonably not be used unless actor believes inflicting or force, (2) (1) using deadly physical is or about to use bodily great harm. about inflict person (a), Notwithstanding “(b) provisions of subsection upon another justified using deadly physical using such force necessity he knows he can avoid that not be the actor shall by retreating, complete safety (1) except defined section required dwelling, if he is *6 against person
to defend another whom “reason- one ably “(1) using deadly believes” is or about to use physical (2) inflicting or or about to force, inflict great bodily (a). harm.” General Statutes 53a-19 person justified using “a is Nevertheless, not deadly physical upon person force another if he necessity using knows that he can avoid the of such safety complete (1) by retreating, except force with required that the actor shall not be to retreat if he aggres- is in his ... and was not the initial (b). sor . . . .” §53a-19 General Statutes Both appeared and Wilson Shaw in the kitchen with capable inflicting deadly loaded physi- firearms conflicting testimony cal harm. There was as to who aggressor.” jury was the “initial Even if the found aggressor, Shaw to be the initial it cоuld not have imposed duty on him a to retreat because the trial portion court omitted that of the statute from its jury; instruction to the in that and, therefore, respect the defendant received a more favorable instruction than he was entitled to receive. The building shooting within which the is occurred clearly dwelling. undisputed It is that the dwell- ing by was owned and that Wilson lived Wilson 53a-100, place or of work and was not the aggressor, initial or if he peace private is a person assisting officer or a peace such officer at direction, acting pursuant 53a-22, (2) by seсtion or sur- rendering possession property person asserting to a a claim of right thereto, (3) by complying or with a demand that he abstain performing obliged an act which he perform. is not “(e) Notwithstanding provisions (a), person subsection justified using physical (1) force when with intent to cause physical injury person, provokes or death to another he the use of physical by force person, such other (2) or he is the initial aggressor, except physical that his use person another under such justifiable circumstances is if he withdraws from the encounter and effectively so, communicates to such other his intent but to do person notwithstanding such other continues or the use of threatens physical force, (3) physical product force involved was the by agreement a combat not specifically authorized law.” apartment. spare the second floor rented Wilson *7 apartment bedroom in his second floor to Shaw, living the assault. there at the time of Shaw reasonably presented jury From the evidence right could have found that to share Shaw had dwelling” the use of “his the kitchen and thus was in when the shots were fired. the trial court in Also, сharge jury its on self-defense to the commented testimony that the would indicate that both Wilson dwelling. and Shaw were in their question The before isus whether General Stat- imposes duty per- utes 53a-19 a to retreat a dwelling in son when threatened another place. who also dwells in the have same We question not addressed this since the codification principle. of the self-defense The statutes which enumerate the situations where the use of force is justified “attempt They to restate the common law. light should be read in the of their common law background, and the faсt that an individual section fully does not state the relevant common rule, law possible applications, exceptions with all its implications, prevent should not a court read- ing body incorporating it as the full common law rules relevant to thereto.” Commission Eevise the Criminal Penal Connecticut Code Statutes, (1972). Comments 5-6 precedent supports
Precodifieation Connecticut
lodger
duty
the view that a
retreat from
has a
to
against
common areas of the
his resi-
dent landlord.
v.
Johnson,
State
Conn. 89,
A.2d 905
In
the defend-
Johnson,
living
ant was
of his
the basement of the house
quarreled
the victim.
and his landlord
landlord,
He
yard
property regarding
in the
land-
order that he should move out. The landlord
lord’s
swung
two-by-four,
a
and the defendant hit and
killed him with a hammer. The defendant claimed
failing
charge
trial court erred in
that the
that
duty
dwelling,
to retreat
there was no
one’s
but
rejected
stating:
fight
“[T]he
we
took
claim,
place,
[where
the basement
the house
yard,
defendant
but
in the
where the
lived],
general charge
right
had
on
deceased
be.
fully
94.
self defense
covered this claim.”
More
Id.,
seventy years ago
than
Connecticut courts included
duty
jury
concept
in thеir
instructions
*8
dwelling-house
place
retreat even in one’s
or one’s
of
v.
83
Bissonnette,
261, 268,
business. State
Conn.
(error
charge
duty
(1910)
imposing
in a
a
381
premises?
shall he
and how
and
flee,
far,
Whither
permitted
he
He has a law
when
to return?
right
legal
nature
ful
to be and remаin
and
there,
enjoy
right
abrogated by its
value
is not
of this
...
It
another.
is our
ment in connection with
declining
opinion
retreat,
that the doctrine of
or of
application to
cases
retreat,
combat
has no
16
.
. .”
76 Ala.
State,
8,
this character
.
v.
Jones
(1884);
Phillips,
A.
24,
v.
38 Del.
187
see also State
Leeper,
(Oyer
1936);
199
721
& Terminer
v.
State
(1925); People Lenkevich,
Iowa
v.
432,
not entirely of the supportive castle . . . doctrine. old appeal Whatever maxim have, House is not Castle in America.” Id., 135. 128, In of the recognition demise of the for- solitary tress and the value of great human life the drafters of the Restatement of Torts (Second) have adopted the minority view. “The privilege defend onе- [to self another against intended likely or cause death or bodily serious exists although harm] the actor correctly reasonably believes that he can avoid the safely of so him- necessity defending self he is attacked by (a) within his retreating dwelling place, also the place other .... . . . does not privilege ... in a which is also the exist place dwelling of the other . . . .” (Emphasis Restatement added.) (Second), Torts 65. (1965) ^ the codweller adopt
We rule set forth by the Restatement. A minority jurisdictions have long it. v. E.g., Oney Commonwealth, recognized 9 Commonwealth 590, Ky. S.W.2d (1928); Johnson, 213 Pa. A. 1064 (1906). This rule is in line with а policy favoring human life over burden retreating and the home, usual self-defense would still principles apply allow defense at the wall or where retreat is impos- sible. In the great majority homicides the killer and the victim are relatives or close acquaintances. Edwards, “Murder Control,” Wayne Gun L. Rev. 1335 cannot (1972). We conclude the Connecticut legislature intended to sanction reenactment of the climactic scene from “High Noon” the familial this kitchens of state. The *10 trial did err in court not giving defendant’s requested instruction that he duty had no to retreat his from cоdweller even he could do so. safely
383 the trial error The defendant also claims give requested self-defense court’s refusal charge. comparison passion” of the of A “heat given language with the instruction was language § 53a-19 demonstrates Statutes General charge the law, “correct in that the trial court’s guide adapted to the issues and sufficient Cooper, jury.” 438 A.2d 211, 207, v. 182 Conn. State 418
II Use of Pkiok Conviction motion in The trial court denied the defendant’s sought by an order which the defendant had limine, offering preventing prosecution into evi- testimony prior conviction dеnce defendant’s manslaughter. this as for The defendant claims disagree. error. We disqualified
At common law conviction of a crime
being
legislature
one from
a witness. The
removed
provision:
“No
shall be
that bar
this
disqualified
any
..
.
as a witness in
action
reason
.
.
of his
such . conviction
crime;
conviction
but
affecting
may
purpose of
be shown for the
credit.” General Statutes
52-145. “It
well
credibility
that the
of a witness
established
impeached by proof
prior
of crimes
convictions
imprisonment may
than one
for which
be more
year.”
v.
Conn.
356
Townsend,
539, 563,
State
167
423
96 S. Ct.
denied,
846,
84,
A.2d
cert.
U.S.
125,
Bitting,
(1975);
“The trial decision to deny court’s the motion to exclude a witness’ record offered prior when attack his credibility will be the court upset only abused its discretion. In determining whether there has been an the ultimate is abuse, issue whether the court could reasonably conclude as it did.” Bitting, 10-11. No details supra, of the man were slaughter the court an admitted; gave instruc tion cautioning the jury consider con prior viction in only defendant’s judging credibility, not in guilt.2 trial court did not determining abuse its discretion.
HI Lost Evidence Mary Baker, friend of lived in Wilson, Wilson’s house. She was a witness to the and shooting
2The court stated: “Now, I want you very to listen carefully to this. There was evi- produced dence that Mr.' manslaughter Shaw was of convicted in Now, you 1972. no one told underlying what the circumstances of that conviction were. fact, me, either, As matter of no one told you and the reason any were not way told is it is because guilt evidence of you this case. All evidence, can with that do charge you, I credibility. to consider it connection with his Our that, law allows conviction of type offense, of that be in attempting used to discredit a witness. “Now, you just don’t have to discredit him. You whatever— decide put you it to put you whatever use want to it can consider the and thing. know, nature You it of lar- a conviction that ceny might mind, question have your more of influence in on a credibility, manslaughter, you than a conviction of so don’t know manslaughter about; how that came you don’t know what instru- mentality used, you knowledge it, no was have your is to deliberately only done because of that consideration any part you determinе or not Mr. and credit whether believe Shaw testimony.” all day police tape statement on after recorded her *12 properly not This statement was the incident. transcribed, was or, or not transcribed, recorded, provided to A was statement, lost. second which during from the taken trial, defense counsel testi- a half the assault. She her a month and after fied trial at and was cross-examined. pursuant to Book Practice
The defendant moved Mary (now §755)3 §2166 Baker’s testi to strike mony the had or to declare a mistrial because state judicial comply an order of the elected “not to with (now 752)4 authority” § § 2163 under Practice Book any produce the the “to of witness statement agents possession . . the or its . which state subject about which relates to matter statement the claims defendant the witness has testified.” The failure motions error and also that denial these as rights produce him his to the has denied statement process. of confrontation and due denying err in the defend- The trial court did not for mistrial. and motion ant’s motion to strike patterned § on the federal Book Practice proceed unless the order of the judiciаl order. of the examination testimony. law enforcement defendant, a mistrial ter about whieh ment in the 3“ “[Practice [Practice the record of witness defendant, possession of If the authority be declared.” order After a witness judicial at Book] Book] prosecuting authority trial, officers, the state the determines judicial authority, in his may direct, who witness has authority See. testimony See. has testified state judicial authority 755. 752. called produce to deliver testified.” statement - of the the its the interests - the state by agents, judicial or eleets -failure any statement witness, -prоduction such to the defendant relates to including shall, on motion discretion, upon motion portion authority has testified and the justice comply state thereof comply subject mat- require that shall strike following trial shall any on direct witness state- with local the the (1976).
Jencks
§
Parley
U.S.C. 3500
Act,
See
&
“Expanding
Discovery:
White,
Criminal
Law and
Tactics Under Public Act 680 of the Connecticut
General Statutes,” 44 Conn. B.J. 335
interpreting
Because there are no Connecticut cases
Practice
Book
we look to
the federal cases
interpreting the federal act. These hold that there
is no error in the dеnial of a motion under this sec
sought
produced
tion
where
statement
to be
has
innocently
being
been
test
lost, the
this: “Whether
or not sanctions
for nondisclosure
should be
imposed
large
depends
measure
the extent
*13
culpability
of the Government’s
for failure to make
disclosable material available to the
on the
defense,
weighed against
prejudice
one hand,
the amount of
to the defense which resulted, on the other.” United
(2d
Miranda,
States v.
526 F.2d
1324
1319,
Cir.
1975), cert.
429
denied,
U.S.
L.
821, 97 S. Ct.
50
69,
(1976). Applying
balancing
Ed. 2d 82
the
test,
Appeals
United States Court of
for the Second Cir
ruling denying
cuit held that the triаl court’s
the
suppress
testimony
defendant’s motion to
the
aof
tape recording
witness because a
of a conversation
between her and the defendant had been lost was
heavy
that
error,
reversible
for
would
sanc
government
piece
tion to the
for
loss of a
evi
primary
on
there
dence which
was other
evidence.
Perry,
(D.C.
Id. In United States v.
It that the of the state- question poten- ment in was unintentional and the slight. prejudice tial to the The defendant was Mary tape; défendant had the second Baker and police Detective Clarence Huff of the Haven New
387 the two statements were testified department defendant same; the the and, further, essentially witness. to cross-examine had the opportunity err denying trial court did not balance, On mis- the motion motion to strike and for both the trial. the unavailability also claims that
The defendant him of his confronta of the first statement deprived the right The core of tion and due process rights. to cross-examine of confrontation is opрortunity the evidence. who is providing it. In defendant had this and used opportunity A.2d Burns, (1977), 317, v. 173 Conn. lost but a toxicol and hair were samples clothing admitted: where ogist’s report “[E]ven evidence state fails to the physical produce testimony, right is the of the witness’ subject for full opportunity confrontation is satisfied Herndon, United States cross-examination. (Additional [1976]).” F.2d Cir. (5th requirements Id., citations 324. omitted). [T]he There been met. has due have process appear *14 the evidence that access to lost showing been no Id., Burns’ defense.” materially would have aided A.2d Herndon, State v. 398 325; 315, 327, 175 Conn. failed 1169 thе defendant has (1978). Here, also, materially been show that his defense would have the first recording the aided access to tape no Baker. There interview with Mary police and due defendant’s confrontation violation of the rights. process is no error.
There con- Js., In Peteks Akmentano, this opinion curred.
388 J. I C. do not (dissenting). dispute
Bogdanski,
the wisdom of the
the
exception court adds to
retreat”
I
statutory “no
rule.
however,
note,
that “as far
as
back
1821 this
held
court
that penal
statutes must
. . .
be
‘expounded strictly against
an offender, and
in his favor.
...
In
liberally
extension of the letter of the law,
may be
nothing
assumed by
nor
the mischief
implication;
intended to be
or
prevented
redressed,
against
offender,
regarded
its construction.
It was
object
the principle,
to establish a certain
rule, by conformity to which mankind should be
and the
safe,
discretion
limited.
. . .’
judge
4
Daggett
State,
v.
Conn.
[1821].” State
63
v.
Faatz, 83 Conn.
State
General Statutes 53a-19 only (b) (1) recognizes § one exception to the rule that a dwell- person, need ing, not retreat before to a resorting deadly in a physical defense reasonable belief that another (1) or abоut using to use deadly physical force, or (2) inflicting about to inflict great harm. bodily That denies exception benefit the rule to an initial aggressor. General Statutes 53a-19 (b) (1). Today the court adds a second exception the rule and makes criminal thereby the failure to retreat in one’s before resorting deadly physical self-defense the use of against deadly force or inflic- physical *15 of bodily tion harm great by an initial aggressor who happens the co-occupant dwelling. Such act is not by the mean- encompassed plain ing justifies penal of the code. The court this addi by finding exception prior tion the second in our case law. An examination the cases cited in the opinion exception. only reveals no such The case arguably problem the deals with before us is State v. 139 Conn. 90 A.2d Johnson, 89, 94, (1952). Although ambiguous, the statement from quoted by placed Johnson the court, when its original merely distinguishes yard the from context, dwelling. the defendant’s we denied Johnson Thus, place a “no retreat” instruction because of where identity incident occurred because of the coparticipant. Because such there is nо ease law, adoption exception of the new abandons the rule of strict construction and violates the constitutional guarantee process by making of due the defendant’s having given conduct criminal without him a reason opportunity prohibited able to know that it accordingly. to act 173 Conn. Chetcuti, (1977); supra, A.2d 167, 377 State v. Cataudella, 556. (b) (1) §
Furthermore General Statutes
53a-19
provisions
comparable
is based on
York
New
Penal Code and the Model Penal
Code.
com-
mentary
comparable
to the
of the
section
Model
Penal Code states:
“Thе Institute voted not to
require
dwelling
the actor’s
when he is
assailed
another
it
whose
also
(2) (b) (ii) (1)
is . . . .”
§
Model Penal
3.04
Code,
(Proposed
1962) p.
Draft
In
Official
49.
view of
plain
language
and the derivation
(b) (1),
majority usurps
53a-19
I believe that the
legislature’s authority by rejecting
the statute’s
limitation on the retreat doctrine. See State v.
*16
Clemente,
501,
509-10,
Conn.
Corporation Diesel Electric
Consolidated
(1974);