*1
tеstimony
“pressured”
ized
that he felt
to execute the
appraisal performed
years
an
four
after
agreement,
contract,
execution of the
and the defendants’ assertion
appear
would
that the plaintiffs,
developers,
as
“[i]t
position
were in a
to know
property’s] true value
[the
and took unfair
of the defendants’ lack of
advantage
such knowledge”;
do not meet this
(emphasis added);
Quick
deferential standard. See Wasniewski v.
&Reilly,
Inc.,
In this the other concurred.
STATE OF CONNECTICUT
RONALD M. SINGLETON
(SC 17795) Norcott, Katz, Palmer, Zarella, Vertefeuille and Js. *2 officially July 28, Argued October released *3 Smith-Rosario, Toni M. senior assistant state’s attor- ney, Dearington, whom, with brief, were Michael attorney, state’s Clark, and James G. senior assistant attorney, appellant (state). state’s for the KentDrager, public senior assistant defender, for the appellee (defendant).
Opinion appeals, granting J. The ZARELLA, state on the judgment Appellate from certification, of the Court reversing defendant, the conviction of the M. Ronald Singleton, manslaughter degree.1 in the first The Appellate Court concluded that the trial court failed to jury properly by removing instruct the on self-defense disputed from its consideration the factual issue of charged The defendant was § murder under General Statutes 53a- jury (a), trial but the court also instructed the on the lesser included manslaughter degree offense of in the first § under General Statutes 53a-55 (a), guilty. of which the defendant was found provides part: рerson “(a) guilty General § Statutes 53a-54a in relevant A is when, person, of murder with intent to cause the death of another he causes person the death . . . of such provides part: “(a) person guilty § General Statutes 53a-55 in relevant A manslaughter degree the first when: With intent to cause serious physical injury person, to another he causes the death of such . . . .” nondeadly deadly or had used whether the defendant victim, with the an altercation during force in the victim’s death. that resulted Cobbs, Leonard (2006). A.2d 725 App. 679, 687, 905 Singleton, the trial claims that court, this the state appeal On had used that the defendant correctly instructed court himself against defending force required a claim of self-defense victim because his killing to whether he was determination as his theoretical knife, making with a thus the victim struggle nondeadly during preceding use of that the instructions responds The defendant irrelevant. improper were because the use disputed was a factual during struggle alternatively2 decide. The defendant issue for the instructed the improperly that the trial court contends exception to the law of aggressor” on the “initial in the manslaughter and on the offense of self-defense the court’s agree first We with the state that degree. reject proper were instructions on self-defense affirmance. for Accord- grounds defendant’s alternative Court. Appellate we reverse the ingly, judgment facts, jury reasonably which the could following *4 opinion Appellate are set forth in the of the found, have and the victim . . . had used Court. “The defendant purchased The victim these drugs together. drugs illegal money. angry with the defendant’s The defendant him for his share that the victim had failed to reimburse 18, 2002, On December the defendant drugs. of the this debt and attempted to find the victim to collect West Haven and New Haven in order traveled to both eventually him. He found the victim the to locate Newhall area of West Haven. provides part: “(a) Upon granting § Practice Book 84-11 in relevant may present grounds certification, appellee alternative for review may upon judgment provided grounds which the be affirmed those were appellate case, .” In raised and briefed in the court. . . this they Appellate Accordingly, relevant issues in the Court. are briefed the
properly before this court. spoke, and the defendant demanded
“The two men that he pay him. The victim indicated that the victim victim to to the money. agreed go not have the did day repay later that his debt apartment defendant’s apartment, $180. the victim again After at the arriving money he did not have the informed the defendant that oral sex as an alternative means perform but offered to this rejected proposal The defendant to settle the debt. The defendant then threatened angry. and became by you up.’ approximately I’llfuck At stating: ‘Yo, victim between the two men p.m., 6:45 altercation and the defendant moved commenced. The victim while in this alterca- engaged around the room stabbed the encounter, this the defendant During tion. a knife and a screw- victim several times with both victim’s death The stab wound that caused the driver.3 left deep, running and one-half inches from was seven by This and was caused a downward strike.4 right, left wall, portion the chest penetrated wound heart, and the and the pericardium diaphragm, lung, and size of length, depth in the liver. The terminating were been caused having the wound all consistent by knife blade. police paramedics call the
“The defendant did not disposed blade, the knife immediately but, instead, handle, attempted which had broken off from thirty More than minutes up apartment. clean 7:22 ended, approximately the altercation had at after called his Victoria Salas. p.m., girlfriend, apartment, attempted at the Salas arriving After 8:51 approximately victim and called 911. At revive the puncture of his head that “The victim had three wounds on back appeared had a been caused the screwdriver. The victim also to have Singleton, supra, App. nonfatal stab wound on his back.” State *5 681 n.3. 4 . . . testified that the victim could not state medical examiner “[The] receiving v. more than ten minutes after this wound.” State have survived App. Singleton, supra, n.4. 97 Conn. 681
739 telephone, Salas’ cellular defendant, using p.m., Richard supervisor, maintenance building called retrieve helped the McCann. McCann chute. garbage down the that he had thrown knife blade police department, telephoned the p.m., At 9:06 Salas after the fight. than two hours arrived more and officers the defen throughout blood The officers discovered blood on had the victim’s The knife apartment. dant’s on the from the victim had DNA it. The screwdriver and a shaft, on the from the defendant handle, blood DNA tip with the defendant’s of blood on the mixture observed One of the detectives major contributor. as the the middle of bleeding from defendant was on his shirt was a bloodstain and that there his chest This wound fifty piece. cent the size of a approximately caused the screw to have been later was determined 5 driver. of self-defense at raised the issue “The defendant ver- on the defendant’s premised trial. The defense that after he testified The defendant fight. sion apartment, him in the repay victim to had asked the pulled out verbally and aggressive victim became victim then him. The and threatened the screwdriver chest, struggle and a in the stabbed the defendant victim, to disarm managed The defendant ensued. the victim Eventually, they struggle. continued to grab managed knife. The defendant grabbed into point, the knife went and, at some wrists, victim’s Single- body, struggle.”6 ending the victim’s App. Conn. 680-82. ton, supra, 97 support argued a claim that the wound was self-inflicted “The state alternative, the victim contended that even if In the the state of self-defense. screwdriver, evidence indi with the the forensic had stabbed the defendant victim.” defendant had stabbed the that this had occurred after the cated supra, App. Singleton, n.5. State v. trial, any testimony to stab thе denied intent In his at exactly point at what that he was uncertain how and victim and claimed wound was inflicted.
740 parties requested jury
Both
instructions on self-
request
proposed
defense. In the state’s
it
charge,
“deadly physical
force” that
referring
instructions
Statutes
were based on
General
53a-19
language
§
Clark,
and the instructions
in State v.
264
(a)7
given
v.
723, 732,
Prioleau,
Conn.
and the use of “a approach the state’s The trial court followed whether the defendant’s jury to consider instructed the *7 under a justified was “deadly physical force” use of the use It instruct on did not theory of self-defense.10 following proposed charge request included the The defendant’s to physical person justified force in reasonable “A the use of instructions: is necessary reasonably upon is to he believes that such force when someone by use, physical use, impending force [protect] of from or another . . . another. justification guilty grounds not on the of “You must find the [defendant beyond proven you, you reasonable has [a] unless find that the state doubt, any following [f]irst, that the did elements: [defendant one injury by another, danger and that of not believe that he in imminent necessary protect himself; or use was not that [defendant of force belief; the force grounds for kind of a or that did have reasonable unreasonable; aggressor. . If the . . that he was the initial he used was or beyond any proven a reasonable or more of those elements state has one Otherwise, justified. doubt, justified. was not he was then the [defendant permitted justification claiming is “A of self-defense of others [defendant may instrumentality dаngerous in circumstances. He to use a two broad only reasonably justifiably dangerous instrumentality if he believed a use use, using, dangerous person a instru- or that the other was either about bodily mentality, inflicting, inflict, great Our about to harm. statutes or or instrumentality physical dangerous force can be reason- define force as bodily ably expected physical injury. anticipated cause Great or serious body, damage physical harm defined to the which is remarkable has been as magnitude degree. in or in reasonable, dangerous degree force must be but instrumental- “The used instrumentality.” ity may perceived dangerous (Cita- be used to counter omitted.) tion legal as is the The trial court instructed the follows: “Justification justified justification, term self-defense. Whenever I use the words or I for referring concept am to the of self-defense. justifies the “Self-defense is a means which the law use of force that raised, illegal. would be Once is the state must dis- otherwise self-defense prove beyond a reasonable doubt. [defense] claiming acted “The defendant claims he in self-defense. In that he [that] self-defense, deadly physical claiming acted in is his use justified. force was “ ‘Deadly physical reasonably physical force’ means force which can be expected physical injury. ‘Physical injury’ to cause serious death or means impairment pain. physical physical injury’ means condition ‘Serious nondeadly physical force, nor did it instruct that the physical death, injury which creates a substantial risk of or which causes disfigurement, impairment impair- serious serious of health or serious loss or any bodily organ. ment of “Although justification, the defendant raised the defense of the state has prove beyond the burden to a reasonable doubt that the defendant was not justified using in force. person justified “There are two circumstances under which a is not using deadly physical proves beyond force. If the state a reasonable doubt any cirсumstances, you one of these shall find that the defendant was not justified using deadly physical force. circumstance, person justified “Under the first is not when, deadly physical force, at the time uses he does not reasonably believe the other about to use [that] against bodily great him or about to inflict harm to him. deciding proved beyond “In whether or not the state has a reasonable using deadly physical doubt that force, the defendant was not *8 you he, fact, will first focus on the defendant. You first focus on what in deadly physical you believed at the time he used force. Then focus on whether the defendant’s belief was reasonable under all the circumstances deadly physical that existed when he used force. requires justifiability “Self-defense the to measure the of the defen- reasonably dant’s actions based on what the defendant believed under the presented circumstances in this case and on the basis of what the defendant reasonably perceived the circumstances to be. “The defendant’s belief must have been reasonable and not irrational or circumstances; is, person unreasonable under the that would a reasonable in the defendant’s circumstances have reached that belief? It is both a question of what his belief was and whether or not it was reasonable. leading deadly “The physical act of to the defendant’s [the victim] use of force need not be an actual threat or assault. The test is not what the other person actually person’s intended but whether the other act caused the reasonably words, defendant danger to believe was his intention. In other the need not have been actual or real. himself, judging danger however, required “In the to the defendant is not judgment. Ordinarily, to act with exercising right infallible one the of self- required instantly defense is to act and without time to deliberate and investigate. circumstances, impossible Under such it is often to make an none, fact, However, аctual threat when in existed. the defendant’s belief danger reasonable, Apparent danger must be honest and sincere. knowledge danger any the using that no real exists is not an excuse for force. you proved beyond “If find the state has a [that] reasonable doubt that not, fact, using the defendant did in believe the was or [that about victim] deadly physical against to use inflicting force him or was or about to inflict bodily grave him, If, harm to the defendant’s self-defense claim must fail. however, you defendant, fact, find that the in believed that was [the victim] the degree of force that required was to decide deadly physical using inflicting force or was or about to use or about bodily harm, you that held great then decide whether belief inflict must is, the circumstances. That would was reasonable under defendant person that have reached in the defendant’s circumstances reasonable belief? you perspective “If was reasonable from the find that the defendant’s belief you circumstances, person must then of a in the defendant’s reasonable reasonably deadly physical force believed that decide whether repel necessary opposed degree of was such attack. as to a lesser force necessary regarding degree “Determining belief defendant’s First, you requires you, again, must force that make two determinations. presented whether, . of all the . . the defen- decide the basis evidence opposed dant, fact, deadly physical believed he needed to use force as in that repel you degree attack. decide to some lesser of force in order If not, fact, in believe he needed use the defendant did [that] [that] inquiry physical attack, your ends, repel force to and the defendant’s If, however, you defendant, self-defense claim must fail. find [that] fact, necessary, you must did believe the use force circumstances; then whether belief was reasonable under the decide is, person in would a reasonable the defendant’s circumstances have reached that belief? person circumstance, is “Under the second physical aggressor force if he the initial and does not from the is withdraw person aggressor The is first acts in a manner encounter. initial who such person’s that creates a reasonable belief another mind that upon person. about to be used that other first to use necessarily aggressor. the initial is not any physical force, aggressor aggressor “Before an initial can use the initial way must fact withdraw abandon conflict such a perceived by opponent opponent withdrawal is his so that is aware that *9 any original longer danger aggression. there is no from the you beyond proved “If find the state has a reasonable doubt that [that] aggressor the was initial and the did defendant the defendant not [that] effectively way withdraw the or it in from encounter abandon such any longer danger defendant, no knew he was in from the [the victim] you then find the defendant was in shall [that] physical force. you justifica- “Bearing given regarding in mind I have the instructions [that] tion, beyond prove has to the state the burden a reasonable doubt under one, [that], not, fact, the first circumstance the defendant did believe that great bodily or, two, danger harm; or imminent death the belief; or, three, defendant did not have a reasonable basis his the for not, fact, deadly physical did he needed defendant believe to use repel attack; or, four, the the defendant did not have a reasonable basis deadly physical repel for his that he belief needed use the attack. defendant had used. jury subsequently rejected the defendant’s claim of self-defense and found him guilty of the lesser included offense of manslaughter the first degree. Thereafter, the court rendered judgment, sentencing to a twenty years term of incarceration.
On appeal to the Appellate Court, the defendant claimed that triаl court’s instructions were improper because the trial court had failed to submit to the question factual of whether the defendant had used deadly or nondeadly force his during struggle with the victim prior to the stabbing. State v. Singleton, supra, 97 Conn. App. Appellate 687. The Court agreed, concluding defendant testified that he grabbed “[t]he [had] victim’s wrists and that during this encounter, up knife ended wounding victim. We cannot conclude, as matter of law, that such actions consti- tuted force. The defendant was entitled jury, have the rather than the court, make that factual Simply determination. . . . put, did not have opportunity to consider the factual issue of whether ” defendant used nondeadly physical force. (Citation omitted.) Id., 696. The Appellate Court further that, observed been instructed to deter- “[h]ad mine whether the defendant used force, it could have found that the defendant’s grabbing of the victim’s wrists and the ensuing struggle constituted an appropriate level of repel force to the victim. The option never was afforded to the defendant. . . . [T]he improper prejudiced instructions [thus] by making it easier for disprove the state to the claim Id., self-defense.” 697. The Appellate Court also con- cluded that the evidence was not “so overwhelming as “Or under the second circumstance . . . the defendant was the [that] aggressor, effectively initial the defendant did not [that] withdraw from *10 effectively the encounter or abandon it so that was aware that [the victim] any longer danger there was no to him.” and harmless” improper render the instruction[s] appeal followed. Id., 698. This ordered a new trial. I improperly Appellate The Court state claims that conviction on the that ground reversed the defendant’s have been instructed consider the should nondeadly The contends that there issue of force. state fatal dispute was no that the defendant inflicted the stab that, determined wound with the knife and once intentionally, he had done all that was left to so of was whеther decide his claim self-defense regarding thereby were irrelevant justified, rendering his actions deadly nondeadly had the issue of whether he used or preceded stabbing. during struggle only responds The that the intentional force defendant over fought he was when he victim used was knife that the actual an unintended stabbing argues of altercation. he consequence Accordingly, self-defense, claim of jury, considering his question of required was to resolve the factual whether nondeadly struggle. during used that the resolution of this fac- defendant contends question tual because it affected the state’s crucial his claim self-defense disproving making burden of predicated it easier to refute a claim of self-defense agree use than force. We rather with the state.
We our analysis with the standard of review. begin process right “A fundamental element of due is the with a crime to charged establish defense. 270, . . A.2d Adams, . improper defense, An instruction on a like an (1993). improper offense, an of an is instruction on element . . constitutional dimension. . standard of [T]he applied review to be to the defendant’s constitutional reasonably possible claim whether the jury it is *11 746
was misled.
...
In determining
jury
whether the
misled,
is well established that
charge to the
[i]t
[a]
jury is
critically
not to be
dissected
purpose
for the
of
discovering possible inaccuracies of statement, but it
is to be considered rather
probable
as to its
effect [on]
to a correct
guiding
verdict in the case.
[it]
. . .
applied
any
The test to be
part of a
is
charge
whether the charge,
whole,
considered as a
presents
injustice
case to the
so that no
will result.
. . .
Clark, [supra,
State v.
see also State
729-30];
264 Conn.
v. Prioleau,
Jimenez,
State v.
[supra,
General Statutes 53a-19 (a) in relevant § part: person is in using reasonable “[A] upon person another to defend himself . . . from reasonably what he believes to be the use or imminent physical force, may use of and he use degree such reasonably force which he believes necessary to be for such purpose; except may not be used reasonably unless the actor believes that such other is (1) using or about to use or force, (2) inflicting about to inflict great bodily harm.” ... is Code, self-defense
“Under our Penal
affirmative
. . .
an
defense.
. .
rather than
defense
.
persuasion
has no burden
a defendant
Consequently,
only self-defense;
has
burden
he
for a claim of
to introduce
merely
required
is,
That
production.
*12
his
of
claim
presenting
to warrant
evidence
sufficient
.
defendant has
jury.
. . Once the
self-defense to
disprove the
to
so, it
the state’s burden
done
becomes
Accordingly,
. . .
beyond
doubt.
a reasonable
defense
enti
self-defense, a defendant is
a
of
[u]pon valid claim
elements of self-
instructions on the
properjury
tled
whether
may
the state
so
ascertain
defense
beyond a reasonable
its
of proving
has met
burden
...
these
justified.
was
As
that the assault
not
doubt
therefore, only the state has a bur
indicate,
principles
claim . . . .”
a self-defense
persuasion regarding
den of
quotation
omitted.)
internal
marks
omitted;
(Citations
v.
possession property to a asserting claim of right with a complying demand that he . . . abstain from an performing act that he is not obligated perform. See General Statutes 53a-19. In other § words, Assembly the General specific has created legis- lation that limits use of deadly physical force in the context of self-defense compared when to the use of physical reasonable force. If carry the state can its bur- proof respect any den of of the enumerated . . . situations the defendant’s claim of self-defense [involving use will fail. In of] contrast, use right reasonable is, by legislative fiat, scope. much broader in In order to defeat a claim of self-defense [involving] use of reasonable force, prove the state must beyond a reasonable doubt that the defendant did not reason- *13 ably believe subject that he or she was to the use or physical imminent use of and did not use a degree of force that was purpose. reasonable for that Simply put, it is much easier for the state to disprove claim [a self-defense when is predicated on the use of] [it of] deadly physical force . . . .” State v. Singleton, supra, App. 97 Conn. 692-93.
Before addressing merits, we note claim justification of self-defense is a defense. “Ajustification defense represents a legal acknowledgment by harm caused otherwise criminal is, conduct under spеcial justifying circumstances, outweighed need to avoid an even greater harm or to further a greater societal interest. 1 P. Robinson, Criminal Law Defenses 24 (1984) (a), p. [Thus], 83. § the case of self-defense, [s]ociety’s interest bodily right integrity, when combined with harm threat- [by ened an aggressor], outweighs prohibi- the normal against iryury tion needed to deter such (b).” Singleton, supra, App. See General § Statutes 53a-19 State v. 97 Conn. 693 n.14.
749 share defenses justification All Id., p. 84. aggressor. an circum- special triggering internal structure: a similar response necessary proportional permit a stances Connecticut, self-defense In p. 86. Id., 24 (b), . . . . § criminal in otherwise engaging for justification is a P. Rob- 53a-19; see also § Statutes See General conduct. Analysis,’ Systematic A Law Defenses: ‘Criminal inson, most modem 199, ([i]n 236 (1982) L. Rev. 82 Colum. . . . treated appropriately is codifications, self-defense justification). pure as a neither condemnation subject is conduct
“Justified
under the circum-
not,
does
because it
punishment
nor
and indeed
law,
of the
prohibition
stances, violate
supra,
Robinson,
P.
encouraged.
desired and
may be
is found to
conduct
Thus,
245.
82 Colum. L. Rev.
circumstances, not criminal.
justified is, under
be
Mindful principles, of these we agree with the state that the triаl court’s instructions on self-defense were improper under the circumstances of this case. We begin analysis by our observing the defendant’s claim of not, self-defense is in actuality, justification a defense. Although the defendant cloaks his claim in the language self-defense, “justification does not seek in otherwise for criminal conduct(empha- engaging sis id., 752; repeatedly but added) characterizes his fatal stabbing of the victim as the unintended consequence of the struggle over the knife.12 Thus, the defendant never appellate concedes in his brief that he may have stabbed the victim during their struggle; rather, he main- tains that he “never denied that the death of [the victim] occurred, had unintentionally, during over a struggle knife . . . .” He likewise declares that (1) victim’s death occurred when the victim “unintentionally was stabbed during struggle as was defending him- [he] self from attack,” knife (2) was not [the victim’s] “[he] aware during struggle got injured,” [the victim] “the (3) stabbing of was not an intended [the victim] result but had unintentionally occurred during strug- gle,” “the stabbing of was unintended [the victim] happened and . . . unintentionally the defen- during justified dant’s intentional and self-defense struggle disagrees The dissent with our conclusion that the defendant does not justification seek for otherwise criminal conduct and asserts that “the defen theory predicated, part, did, dant’s of defense is in on the claim that he fact, engage criminal, namely, in conduct that otherwise would have been grabbing away the victim’s wrist an effort to take the knife from him” “seizing because the victim’s wrist would have constituted a criminal assault against reasonably the victim if the defendant had not believed that it was necessary engage against in that conduct to defend himself the victim’s opinion. dissenting dissent, attack.” however, Footnote 6 of the misses point phrase “justification the crucial that the term “criminal conduct” Montanez, supra, conduct”; for State 752; otherwise criminal charged manslaughter means conduct. Neither assault nor reckless charged Accordingly, in this case. instruction that the defendant was against theory the victim based on such a improper. would have been
751 he testified that knife,” (5) the over with victim] [the struggle over was only force used intentional “the occurred uninten- stabbing actual knife and that the the with struggled “he and tionally struggle,” the during . but . . the knife self-defense the over victim] [the unintentionally . . . .” In occurred stabbing actual claims that the repeatedly words, the defendant other accidental. purposes, intents and for all stabbing was, appeal consistent argument defendant’s at trial he did know that testimony with his that knife, when by wounded the even the victim had been and suddenly stopped staggered struggling the victim the testified that he fact, over to the bed. In defendant he “was after ceased kidding” that the victim thought it only on the and that was bed, and sat down fighting onto off the bed and the floor after the victim rolled the defendant saw a bloodstain on front the stab wound. The victim’s sweater and discovered if that, no claim even defendant also makes intentionally victim, he found that he had stabbed Indeed, he contends his claim acted self-defense. claiming an accused self-defense from that of differs intentionally or inten- firing gun who acknowledges tionally victim but who maintains that it stabbing necessary Instead, do so self-defense. was emphasizes stabbing repeatedly defendant “happened it “unintended,” this case or that unin- was tentionally” justified his “intentional self- during and, over the knife” defense with struggle [the victim] any criminal conduct. Conse- thus, did not involve his more viewed as a claim quently, properly claim is entirely accident, proof, failure of which raises question of whether he intended to commit different crime, in committing not whether Robinson, 1 P. Criminal Law Defenses supra, it.13See 13 App. n.1, Solomon, (2007), A.2d In State v. respect Appellate Court made a similar observation a claim “Contrary sell-defense in that case: to the defendant’s *16 752 22, p. proof 72 (“Failure
§ defenses consist of instances in which because of the conditions that are ‘defense,’ the basis for the all elements оf the offense charged proven. They cannot be are essence no more than the of an negation required by element the defini- tion of the see also offense.”); id., p. 51 203 n.l (a), § (failure proof “clearly defenses are distinct from justifications . . . they express general no [because] principle exculpation or exemption”).
A claim of accident, pursuant
to which the defendant
prove
asserts that the state failed to
the intent element
offense,
of a criminal
does not require
separate jury
instruction because the court’s instruction on the intent
required to commit the
crime is
underlying
sufficient
in such circumstances. See State v. Schultz, 100 Conn.
App. 709, 716, 921A.2d 595 (trial court’s denial of defen-
request
dant’s
on accident or
charge
unintended con-
sequences
improper
because court instructed
on element of
cert.
intent),
denied,
926,
282 Conn.
926
A.2d 668
We nevertheless consider
(2007).
whether the
improperly
trial court
failed
to instruct
decide
whether the defendant used
force when the state
agreed
that he
presented sufficient evidence to warrant a self-defense
instruction and the trial court concluded that he was
See,
entitled to have one.
v.
e.g.,
Miller,
55 Conn.
App. 298, 300-301,
The state claims that
trial
once the
found
proper because,
self-defense were
intent to commit
requisite
that the defendant had
*17
would have
offense,
necessarily
rejected
it
charged
the
accident,
consequences,
or unintended
his claim of
completely removing
jury’s
from the
consideration
thus,
used
non-
issue of whether the defendant
or
the
We
preceding struggle.
agree.14
during
14
correctly
accident and self-
The state
notes that Connecticut considers
claims,
separate
inherently
although a
inconsistent
defendant
defense
and
State,
811,
may
v.
259 Conn.
raise them as alternative theories. Shabazz
816,
(defendant
separate
(2002)
theories of
The defendant’s and
in this
improper
struggle preceding
stabbing
state
met its
case. Once the
found that the
had
beyond a
doubt that the
burden of
reasonable
proving
to cause the victim serious
intended
had
his
him with
injury
stabbing
caused
death
knife,
disputed
there was no
factual
issue that
required
juiy
to determine whether the defendant
had
during
used
or
during
The defendant’s
use of force
struggle.
intentional
bearing
question
had no
on the ultimate
straggle
manslaughter
whether he was
murder
guilty
*19
both
degree
predicated
first
because
offenses were
intentionally
on the fact that the defendant
had stabbed
the victim.16
15
and
were
The instructions on the elements of causation
self-defense
manslaughter
degree.
identical for both murder and
in the first
16
reason,
inapposite
Appellate
For this
also find
the cases that the
we
supra,
cited;
Singleton,
App. 692-95;
concluding
v.
Court
see State
97 Conn.
improperly
jury
on
the trial court
instructed the
the use of
during
struggle.
Whitford, supra,
See
v.
260 Conn.
State
App.
764-66,
631-34;
Wayne,
761,
(2000);
State v.
60 Conn.
756
argues
defendant
over the
struggle
knife
was relevant
to the charged
jury
crimes and that the
required
was not
find
that he intended to cause the
victim harm because this court has ruled that self-
defense is a valid defense to unintentional crimes. See
State v. Hall,
579, 584,
213 Conn.
The defendant
concedes this
respect
ground
arguing,
to his first alternative
for
alleged attack on him with
affirmance, that the victim’s
knife
screwdriver and a
constituted
use
intentionally
question
force because “there
stabbing
no
with a screwdriver is the use
someone
coming
as
force,
is then
at
*21
long
with a
knife.” Similarly,
defendant,
kitchen
the
in
the
allegedly
trial court for
to
criticizing
failing
instruct
jury that,
the
if it found that he had stabbed the victim
intentionally,
and
then,
only then,
or
it
could
should
find
the stabbing
deadly
that
constituted the
of
use
physical
of
purpose
force for the
considering his claim
of
in
self-defense,
effect concedes that such an instruc-
tion
proper.
would have been
The court, however, did
jury
instruct the
that it first must find intent, and then
causation,
question
before reaching the
of whether the
deadly physical
defendant’s use of
force was reasonable
theory
under a
of
We
self-defense.17
therefore conclude
argues,
agrees,
and the
defendant
dissent
that “the
court
[trial]
flatly
jurors
told the
that the defendant had used
they
telling
something
. . . even before
to
them
had
decide
about the
deadly
By
doing,
defendant’s intention
used such
when he
force.
so
the trial
only improperly
jurors
disputed
court
from
took
the
factual
of
issue
nondeadly
deadly force,
improperly
whether the defendant used
also
but
jurors’
by telling
influenced the
of
consideration
the defendant’s intention
them as
of
a matter
law that
defendant had used
force and then
[by] improperly allowing
degree
to
them infer
he intended to use that
[that]
disagree.
of
.”
force . . . We
previously explained,
jury
As we
the trial court’s failure to instruct the
improper.
respect
on
force was not
With
to the instructions on
justification
intent,
that,
jury
note
and
we
before the court instructed the
justification,
charged, stating
it
to the
of
referred
elements
the crimes
every
up
as follows: “Almost
crime is made
of several essential elements.
are,
explain
you
What the essential
here
elements
crimes
I’ll
in a
say
present,
enough
that,
moment.
For
it
for me to
before a
can
guilty
crime,
proved every
return a verdict of
state
of
must have
beyond
essential element of that crime
a reasonable doubt.” The court
proceeded
credibility
give lengthy
witnesses,
then
instructions on the
of
justification.
guilt,
Thereafter,
instructing
consciousness
on the
crimes,
elements of the relevant
the court stated
times
several
that the
decide,
respect
charge
must
with
of murder and the lesser offense
manslaughter
degree, first,
requisite
in the first
had
intent, second, that, acting
requisite intent,
with
he caused the victim’s
third,
death, and,
justified
acting
part
that he was not
HI
as he did. See
opinion. Accordingly,
of this
there is no merit to the claim that the court’s
justification improperly
jury’s
instructions on
influenced the
consideration
repeated
regarding
of intent because the trial court’s
instructions
the order
in which the
was to decide the elements of the crimes
it
ensured that
justification prior
considering
would not consider
the elements of intent
Wallace,
261, 276,
and causation. See State v.
The
that his claims are
acknowledges
defendant
request
did
file a
unpreserved
charge
because he
exception
object to
on the initial
and did not
aggressor
they
when
were
instructions on self-defense
Golding,
He therefore seeks review under State v.
given.
“Under
233, 239-40,
(1989).
760 appeal only constitutional claim on if all the following are adequate conditions satisfied: the record (1) error; review the claim alleged the claim is of (2) constitutional magnitude alleging the violation of a fun- damental right; (3) alleged constitutional violation clearly clearly exists and deprived the defendant of subject fair and if trial; analysis, to harmless error the state has failed to demonstrate harmlessness of the beyond alleged constitutional violation a reasonable doubt. two [prongs Golding) first involve [Id.] a determination of whether the claim is reviewable; the second . . . involve a two determination of whether may prevail. . . . State v. Peeler, 271 338, Conn. A.2d 360, 857 cert. (2004), denied, 546 94, 163 U.S. S. L. 2d 845, 126 Ct. Ed. 110 (2005).” (Internal quotation marks Conn. omitted.) Ray, 290 n.12, 148 (2009). A.2d
We conclude that the defendant’s claims are review- able under because Golding adequate the record is *23 improper jury the claim an instruction is of constitu- part tional I magnitude. opinion. See of this We further conclude, that the however, prevail defendant cannot on his claims possibility because there was no that the jury by was misled the and, trial court’s instructions, therefore, no clearly constitutional violation existed deprived that him a fair We trial. address each claim in turn.
A The defendant first claims that the Appellate Court’s should judgment be affirmed on the that ground trial court improperly person failed to instruct that a aggressor cannot be deemed the initial a matter as law on the basis of words alone and qualifying that the act must be rather than verbal. He claims that necessary such was an instruction because the court’s instructions that a suggested person could be deemed even alone, the basis of words initial aggressor clearly contrary. to the The defendant the law is though was requested instruction also contends that jury misled the and caused important because the state improper on an reject it his claim of self-defense attorney (pros- when the senior assistant state’s ground could, should, it and indicated to the that ecutor) was when aggressor defendant the initial find that the you by I’ll fuck stating, “[y]o, the victim threatened perform sex had oral after the victim offered up,” responds as his debt. The state settling drug a means of view support do not this that the facts We the trial court’s instructions. was misled state. agree are to our
The facts relevant following additional During closing argument, this claim. resolution of aggressor prosecutor told the initial “[t]he . a manner . . that who first acts such person’s in another mind creates reasonable belief other upon force is about to be used then “Do we have a person.” prosecutor argued: we an action that situation like that? Do have initial that caused fear threatening caused —that [and] you my money, You owe me I’ve got [the victim]? apartment. [diagram depicting You’ve seen positions the victim and the defendant respective apartment defendant’s at the time of the altercation] way blocking .... [The is] [the victim’s] says, he? And apartment, out of isn’t [the defendant] you up,’ moving ‘I’m fuck and he toward going to starts *24 [the victim].” “Initial
Thereafter, argued: aggres- defense counsel you says, up,’ sor? ‘I’m fuck going [The defendant] goes victim], pulls and he toward [the [victim] immediately up screwdriver, and backs [the defendant] up. his puts Now, and hands victim the aggressor [the is] gets they and he stabbed. And and defen- grapple, [the disarms victim], and goes dant] back [the [the victim] and gets knife it, to escalate [the] [the the initial aggressor?” is]
The trial court subsequently instructed the part: relevant “The initial aggressor person is the who first acts in such a manner that creates a reasonable belief in person’s another mind that physical force is about to be upon used person. other per- The first son physical to use force is necessarily the initial aggressor.”
General Statutes
provides
53a-19 (c)
§
in relevant
part:
person
justified
is not
physical
force
“[A]
when ...
he is the
initial aggressor
. . . .’’In
State v. Jimenez, supra,
“Read according plain to its language, whole, and as a doubtlessly contemplates 53a-19 § that a may respond a reasonably perceived threat force without becoming initial aggressor and forfeiting the defense of self-defense. Otherwise, in order to avoid being labeled aggressor, *25 meekly wait until by and would have to stand person If responding. first blow before assailant struck the an deadly force or employ intending were an assailant interpretation an bodily such harm, inflict great [to] extremely to one’s dangerous be the would statute not have been a bizarre result could health. Such Id., 341. added.) by (Emphasis the legislature.” intended did prosecutor not the closing argument, During the initial be considered the defendant should argue that alone, as the defendant the of words basis aggressor was the whether the defendant discussing contends. In diagram referred to a prosecutor initial the aggressor, jurors reminded the apartment the and defendant’s by the victim that the defendant had threatened you “I’ll by him, up,” fuck egress, telling his blocking by prosecutor thus toward him. advancing and aggressor the was the initial not argued that said to the victim but simply because of what had physical Accordingly, conduct. we also because his that, to extent that the defendant claims conclude improperly trial instructed the that court clarify failed to or correct the mis- because the court conveyed prosecutor’s impression closing taken aggressor that defendant was initial argument on the words his claim must fail alone, basis his prosecutor argument, and, because the made no such there no accordingly, misunderstanding correct. We also conclude that trial court’s instructions person initial is the who first acts aggressor “[t]he belief in such a manner that creates a reasonable is about person’s another mind upon person” be other and that first used “[t]he necessarily person to use force is not initial entirely law aggressor” were consistent did advise proper. thus were The instructions imply that could be considered initial addition, In aggressor on basis of words alone. nei- *26 party ther argued person that a could be considered the initial on the aggressor basis of words alone. As we indicated in the preceding discussion, prosecutor argued that the defendant was the initial aggressor as a result of the combination of physical verbal and con- duct. Similarly, the defense argued that the victim was the initial because aggressor he had used threatening language and brandished screwdriver. Accordingly, there by was no suggestion by the court or party either person that the who was the initial aggressor had threat- ened the person other on the basis of words alone. As a result, we conclude that there was no reasonable possibility was misled or that it rejected the defendant’s claim of improper self-defense on grounds.
B The defendant also claims that the trial court’s instructions were improper they because failed to make clear that the initial aggressor using force who is met with by force may the victim be justified in using repel force to the victim.18He give following Defense counsel asked the court to instruction on by aggressor, the use of force language initial which omitted the that requests: person justified physical using now “A is not in when, physical injury person, force with the intent to cause to another he provokes physical person. However, the use of force that if the [defendant aggressor, physical upon justifiable was the initial his use of force another is circumstances, under such if he withdraws from the encounter and effec tively person withdraw, communicates to the other his intent to but the person, notwithstanding, struggle, other cоntinues the or threatens the use physical degree reasonable, force. The of force used must be but [a] dangerous instrumentality may perceived dangerous be used to counter a instrumentality. apparent danger And when actual or . . . from harm has ended, right then the to use that force also ends.” gave person justified The trial court a similar instruction: is not “[A] using aggressor force if he is the initial and does not with- aggressor person draw from the encounter. The initial is the who first acts person’s such a manner that creates a reasonable belief in another mind physical upon person. is force about to be used that other The first person physical necessarily aggressor. to use force is not the initial aggressor any physical force, “Before an aggressor initial can use the initial way must withdraw or abandon the conflict in such a that the fact of law, at common is principle recognized claims this statute, in this state’s self-defense implicit is therefore present facts of the and, is relevant because it have trial court to case, it was error for the reversible disagree. omitted such an instruction. We provides 53a-19 relevant (c) General Statutes § person part: “[A] except ... is the initial aggressor,
when upon use of another under his *27 justifiable if he withdraws from such circumstances is to such effectively the encounter and communicates person intent to do but such other so, other his physi- or the use of continues threatens notwithstanding . cal force . . .” statute and plain unambiguous, of the is language justified initial is in provides
and that aggressor only force if withdraws from the using encounter and certain other are satisfied. It conditions provide, suggest, does not that an initial aggressor justified using deadly who uses force is in repel victim’s unlawful escalation of force deadly to the level.
It is well that cannot a accomplish established “we contrary that legislature result is intent of the as plain ... expressed in the As we language. [statute’s] perceived by oppоnent opponent withdrawal his is so that aware that any danger aggression. longer original there is no from the you proved beyond “If find has the state a reasonable doubt that [that] aggressor initial was the and defendant did not [that] effectively way withdraw from the encounter or abandon it in such a that any defendant, longer danger from the knew he was no [the victim] you justified then shall find the defendant was not [that] physical force. “Bearing you justifica- given regarding instructions mind the I have [that] tion, prove beyond the state . has the burden a reasonable doubt . . aggressor was the initial defendant did [that] [that] effectively effectively not withdraw from the encounter or it so abandon any danger longer that that there was aware was no to him.” [the victim]
recently have reiterated, a court must
construe statute
may
by
supply
as written. . . . Coruts
construction
exceptions merely
omissions ...
or add
because it
appears
good
adding
reasons exist for
them. . . .
legislature,
repeatedly
The intent of the
as this court has
legislature
observed, is to be found not in what the
say,
meaning
say.
meant
but
of what it did
...
It is
axiomatic
the court itself cannot rewrite
accomplish
particular
a statute to
result. That is a
legislature.” (Citation
function of the
omitted; internal
quotation
omitted.)
marks
Vincent v. New Haven, 285
(2008).
Conn.
792,
The additional facts following The court instructed on of this claim. trial resolution “A degree first as follows: manslaughter degree in the first manslaughter of intentional guilty injury to when, with intent to cause serious person. of such person, he causes the death another “In intentional prove guilty order to has state the bur- manslaughter degree, in the first one, prove beyond [that], a reasonable doubt den cause specific intent to serious the defendant had the person, two, acting with that physical injury and, to a the death of specific intent, the defendant caused [the knife, and, him stabbing three, with a victim] in using defendant was force.” specific instructions on the gave
The court then physical injury,” of “intent” and “serious meaning prior recall the instructions asked court’s justification using deadly physical for force. *29 court then continued: in mind instructions “Bearing you intent, I the elements given regarding have [that] manslaughter of intentional the first of crime justification, prove and order to defendant degree in the manslaughter of the crime of intentional guilty prove beyond must a degree, first the state reasonable specific that, one, doubt the defendant had the intent physical injury to cause serious [the and, victim], acting two, intent, with that the defendant caused the by stabbing [the victim] death of him with a knife, and, the defendant was not three, physical force. you proven beyond
“If find [that] the state has a reasonable doubt each of these three elements of inten- manslaughter you degree, tional in the first shall find guilty manslaughter of intentional in the you degree. event, first In that will more, deliberate no your completed. and deliberations are you prove beyond [that] the state has “If find failed a reasonable each doubt these three elements manslaughter degree, you intentional in the shall first guilty intentional man- find slaughter degree. you in the In event, will first your more, deliberate no and deliberations are com- pleted.” (Emphasis added.) gave prosecutor
After the court its instructions, the “any” noted that the court should have referred to ele- part ment of the offense in the last of the instruction finding guilty, replied on the defendant not but the court given. that it believed the instruction was sufficient as request charge Defense counsel did not submit manslaughter degree, objection in the first raised no given, the instructions that were and referred to the just instructions as “[s]hort sweet, and like I like it.” Thereafter, the court reinstructed the in the same response jury’s request complete manner in to the for again reinstructions, at which time defense counsel objection. raised no
It is well established that defendant “is entitled to jury correctly adequately have the instructed on pertinent principles (Internal law.” substantive quotation omitted.) marks States. Ortiz, Conn.
769
justice is to
Moreover,
(2000).
We conclude the court although find the defendant not instructed should prove “each,” if the state failed to instead of guilty “any,” element of in the first manslaughter degree, instructions as a whole were not The court misleading. first named the three elements that the state was required prove for the to find the defendant self-defense, namely, intent, of his claim of guilty light unjustified causation and the use of The court each of the elements force. next described It then summarized the three elements and detail. *31 each proved if the state that, one last time reiterated jury shall find the defendant elements, the of the three referred of the fact that the court Thus, light guilty. to the state would have times to the fact that four find jury in order for the to all three elements prove possibility there was no that guilty, the defendant that it could find the improperly led to believe jury was prove to only if the state failed guilty defendant not beyond the offense a reasonable every element of Wade, See State v. App. 467, 491-92, Conn. 106 doubt. jury finding as whole and charge A.2d 1085 (viewing 942 instruction that distinction” between “mеaningful no if failed to state guilty shall find defendant “any,” offense), element of prove “each,” instead of cert, 950 A. 2d 908, on other grounds, granted June Accord 12, 2008). withdrawn (2008) (appeal prevail we conclude that the defendant cannot ingly, alternative for afffirmance. ground on his second Appellate Court is reversed and judgment The direction to the case is remanded to that court with of the trial court. affirm the judgment VERTEFEUILLE, and opinion In this NORCOTT Js., concurred. KATZ, J., joins,
PALMER, J.,
dissenting.
with whom
M.
that
defendant,
Singleton,
I
with the
Ronald
agree
correctly concluded that the trial
Appellate
Court
present
had violated his constitutional
right
court
instruct the
on the defendant’s
failing
defense
Singleton,
of defense. See primary theory
I
App.
680, 696-97,
The additional following have found. reasonably could are relevant however, also procedural history, facts testified the defendant appeal. trial, At to the issue him for a pay apartment to his that the victim came provided had quantity of drugs minutes, for a few spoke After the two men the victim. indi- debt, the victim drug his mentioning and without told the victim The defendant leaving. cated that he was The victim drugs. for the paid he wanted to be moved toward and the defendant began “babbling,” up.” he was to fuck victim, stating “going [him] *32 pocket, from his The victim then removed a screwdriver victim con- away. to back The the defendant prompting stabbed him in the tinued toward the defendant and then grabbed with the screwdriver. The defendant chest the screwdriver. The victim, drop him to causing defendant and the vic- physical altercation between the they separated. At that continued, but, eventually, tim time, the victim a knife from the defendant’s grabbed then told the victim kitchen counter. The point which the victim jail,” that he was at “going to the According came at the defendant with the knife. thе victim’s wrist in defendant, “grabbed” and “bent” away an effort to take the knife from him. The defendant over the struggled further testified that the two men point, stopped at some the victim knife, that, but down on the defen- resisting. staggered, The victim sat floor. When the bed and then rolled onto the dant’s him approached not the defendant move, victim did body. The and observed that the knife had entered his only that he had intended to disarm defendant insisted had intended to the victim and that he otherwise any cause him harm. predi-
The defendant raised a claim self-defense was killed. In cated on his version of how the victim an instruction on the particular, sought nondeadly physical force the victim based against use of justified in degree his claim that he was necessary to disarm the victim. The defendant of force on the use of also an instruction sought self-defense, presumably to account for force that, contrary to the testi- possibility jury finding of a mony defendant, he had stabbed the victim the defendant’s trial light the intent to do so. In however, apparent it is that the defendant’s testimony, use of force claim involved his principal defendant, to the victim, which, according against led to resulted in his altercation with the victim that court, death.1 The trial stabbing the victim’s accidental on the defendant’s however, did not instruct justified in non- used, using, claim that he had and was victim; the court instructed against jury only on the use of self-defense.2 the defendant not of murder but guilty found of man- found him of the lesser included offense guilty under General Statutes degree in the first slaughter (a) (l).3 53a-55 § *33 request proposed Although charge contained a instruc the defendant’s why deadly physical force, it is not clear tion on the use of testimony light explaining sought charge he had used such a of his that nondeadly any event, only attempting to disarm the victim. In force instruction, sought the such an and defense counsel did because object given, trial be faulted to the instruction when the court cannot deadly fully explain charging the on the use of force. As I more for hereinafter, presented trial court the issue this case is not whether the deadly but, rather, improperly on force whether the court the instructed nondeadly and, improperly if failed to instruct the on the use of force so, instructions on the defendant’s claimed use of whether the court’s impropriety. compounded resulting that force the harm from explains charge self-defense, The trial court’s in which the court may justified explain be but does not the use when the use of force majority opinion. nondeadly force, is set forth at footnote 10 of the provides part: “(a) in relevant A § General Statutes 53a-55 degree guilty manslaughter cause in the first when: With intent to person, physical injury he causes the death of such serious to another
person . . . .” defendant main- the Appellate Court, appeal On had improperly that the trial court tained, alia, inter justified of the jury on his claim failed instruct See victim. nondeadly against force use of Appellate 687. The Singleton, supra, App. because he had that, with the defendant agreed Court sup- the evidence charge, a because requested such id., to it. instruction, he entitled See ported the was also determined that Appellate 696-97. The Court were consti- instructions on self-defense the trial court’s the state could not tutionally and, further, that deficient beyond harmless the instructions were establish that Appel- Id., Accordingly, 697-98. reasonable doubt. the trial court and judgment Court reversed the late 680. Id., case for a new trial. remanded the Upon appeal, the state granting certification con- Appellate improperly Court contends court to instruct the required cluded the trial on his jury, request, in accordance with defendant’s nondeadly in self-defense. The claimed use of state, that “the trial majority agrees concluding with the defendant had used correctly court instructed that the against force in himself defending required jury claim of victim because his self-defense whether killing determination as to he was his knife, making the victim with a thus theoretical nondeadly preceding struggle use of during major- of the irrelevant.” I the conclusion disagree ity, its characterization of defendant’s including . . . .” claimed use of force as “theoretical my with the explaining disagreement majority, Before principles I well govern note certain established analysis presented by this court’s this issue *34 “A appeal. process fundamental element of due is the a charged of defendant with a crime establish right State quotation a defense.” marks (Internal omitted.) Davis, 553, 573, v. 261 Conn. A.2d 781 (2002); see Wright,
also State v.
273 Conn. 418, 424,
With
to the adequacy of the instructions,
test of a court’s
is not
charge
whether
it is as
“[t]he
upon
accurate
legal principles as the opinions of a court
of last
fairly presents
resort but whether it
the case to
jury
way
injustice
such a
is not done to either
party under the established rules of law. . . . Thus, we
must determine whether the
as a
charge
presents
whole
the case to the
so
injustice
that no
will be done.
. . .
[j]ury instructions need not be exhaustive,
[The]
perfect,
technically
accurate.
. . . Nevertheless,
correctly
trial court must
adapt
the law to the case
question
provide
must
with sufficient
guidance in
reaching
correct verdict.
...
In
determining whether the trial court’s instructions meet
standard,
this
we
review the
charge
the context
of the factual issues raised
each
(Citations
[in
case].”
omitted;
quotation
internal
marks
omitted.) Daley
Aetna
& Casualty Co.,
775
a verdict.”
jury
arriving
in
at
guide
the
sufficient
Bailey,
quotation
omitted.)
marks
(Internal
269 Conn.
590,
denied,
A.2d
cert.
App. 1, 8,
Conn.
present
as
Finally, when,
in the
(2004).
because that conclusion is founded on the state’s that, ment “once the found that the defendant had *36 requisite charged intent to commit the it offense, necessarily rejected would have his claim of accident, consequences, completely or unintended thus, remov- ing jury’s from the consideration the issue of whether deadly during the defendant used or force preceding struggle.” ignores This contention import of the trial court’s instructions on the defen- deadly dant’s claimed use of force in self-defense. The repeatedly jury court instructed the that the defendant claiming was to have used force in self-defense, jury instructing and the court did so on the before elements of homicide. In other words, the court first explained jury to the “[t]he defendant [that] claims claiming he acted in self-defense. In that he acted in claiming self-defense, the is that his use defendant deadly physical justified. was force “ ‘Deadlyphysical force’ means force which reasonably expected can be to cause death or serious physical injury. physical injury’ . . . ‘Serious means physical injury which creates a substantial risk death, disfigurement, impair- or which causes serious serious impairment any ment of health or serious loss or bodily organ.” (Emphasis added.) The court further explained “[although that, the defendant raised the justification, defense of the state has the burden to prove beyond a reasonable doubt that the defendant justified using deadly physical was not force.” (Emphasis added.) instructing Thereafter, and before on what required prove the state was to establish the elements degree manslaughter, of the crime of intentional first repeatedly the trial court underscored for the affirmatively asserting was that he had deadly physical against used force the victim in self- instructions, necessar- In of these light defense. sole claim led that the defendant’s ily was to believe had, that he acknowledgement on his predicated was victim, is, against fact, used justified was intentionally victim, but had stabbed “a explained: (1) example, so. the court doing For deadly physical force person is not force, he deadly physiсal uses when, at the time he other reasonably not believe does [that] him or about against about use inflict, added); bodily him”; (emphasis harm great has proved state whether not the deciding “[i]n beyond a reasonable doubt that you will *37 deadly physical force, in first using defendant”; (emphasis added); (3) “[y]ou on focus the at the he, first focus what in believed time fact, . then . . deadly . . . focus physical used [and] force on whether defendant’s belief was reasonable under the deadly when he used all the circumstances existed act physical of force") (emphasis added); (4) “[t]he [the deadly use leading physi- to the victim] of defendant’s an or assault”; cal not be actual threat need force . decide “you must . . whether (emphasis added); (5) deadly reasonably physical the believed that defendant was opposed as to a lesser neces- degree of force force sary repel attack”; to (emphasis added); victim’s] [the “you on the basis all the (6) whether, must decide . presented defendant, fact, . . evidence the physical to use as deadly believed that he needed force opposed degree repel in order to some lesser offorce attack”; (7) you (emphasis added); “[i]f [victim’s] . . . believe decide did [that] [that] defendant deadly repel he needed to use force inquiry and the attack, your ends, defendant’s [victim’s] fail”; added); (emphasis (8) self-defense claim must “[i]f you . . . . . . did believe that find [that] defendant you deadly physical necessary, use was force
must then decide whether that belief was reasonable circumstances”; under the (emphasis added); (9) “[i]f you find proved the state has . . . that the defen- [that] aggressor dant was the initial [that] effectively did not withdraw from the encounter or way abandon it in such a knew he was [the victim] any no longer danger defendant, you from the shall notjustified then find [that] defendant deadly physical force”-, (emphasis added); and “the state has the . . prove burden to . . . . the [that] did not . . . believe he neеded to use defendant repel attack ... [victim’s] force . . . did not have a reasonable [that] deadly physical basis his that he needed to use for belief repel attack.” (Emphasis added.) [victim’s] force Following these instructions on the defendant’s use self-defense —instructions comprised full pages transcript six trial —the finally explained court the elements of the crime of intentional In manslaughter. doing so, however, court again expressly repeated the state’s burden of disproving justifiably the defendant’s claim that he had used the victim. against Thus, the court jury that, instructed the prove order to the defen- “[i]n *38 dant of guilty manslaughter intentional in the first the the degree, prove beyond state has burden to a reasonable [that], one, doubt the defendant had the specific intent to cause injury serious to a person, and, two, specific with that acting intent, the defendant death by caused the of stabbing [the victim] knife, and, three, him with a the defendant was not justified By point in force.” this using jury already in the instructions, had been instructed repeatedly that the defendant himself was that claiming by he had used the victim against stabbing him with but that knife, his use of such force was justified. words, effectively In other the court had jury had conceded the defendant that instructed manslaughter— of intentional the crime of elements thereby causing his victim, had stabbed is, he specific serious intent to cause death, with the injury claim was that his sole victim—and to the reasonably justified doing because he in so he was him with the to kill intended that the victim believed bodily injury with it.4 him serious cause knife or to majority real claim that the defendant’s contends not war- a claim does and that such accident, is one majority, According special to the instruction. rant a by adequately theory covered is of accident defense may that it is It be true on intent. court’s instructions jury necessary always to instruct the for a court expressly of accident because claim on a defendant’s explained adequately theory generally will be such certainly by That is on intent. instructions the court’s previously I however, because, as here, not the case explained instructed the trial court detail, the time already jury had intent, the on the element apprised, occasions, of the defen- numerous been on engage in that he did indeed own contention dant’s seri- to cause the conduct intended suffer justified doing physical injury, was but that he ous present purposes Consequently, case, it for so. manifestly presume that the trial unreasonable provide sufficient to on intent were court’s instructions explanation fair and understandable with a claim, principal reiterate, or even his was not the defendant’s sole To importantly, claim that the defendant raised on it was not the claim. Most discussed, testimony. previously As I the basis of his own trial is, justified engaging physically the victim testified that he was —that against the victim —in an effort to was approached away him. The from the victim as the victim take the knife theory primary failure to instruct defendant’s court’s undoubtedly requested, improper, defense, as the defendant had *39 testimony jury confusing light that his use in of the defendant’s was to the nondeadly force was limited to force. principal theory defense,
the defendant’s that is, accidentally the victim was stabbed in the altercation arising justified out of the defendant’s use of force In against words, majority the victim. other misguided concluding the court’s instructions jury on intent were sufficient to inform the of the defen- primary theory dant’s of defense because those instruc- jury tions informed the unambiguously that the defen- contesting dant was not the element intent light intentionally his claim that he had deadly physical used force the victim in against self-defense. majority
It therefore is unfair for the to assert that the primary theory defendant’s of defense was adequately by addressed the trial court’s instructions on the ele- ment of intent. Without question, trial court’s repeated concerning instructions the defendant’s claim intentiоnally deadly physical that he had used against jury the victim made it clear to the defendant was conceding elements of intentional manslaughter, justi- but that his use of force was fied. In of these light instructions —and light complete jury court’s failure to instruct the on the the- ory of defense testimony raised the defendant’s at reasonably trial —it cannot be maintained that court’s on intent charge jury was sufficient to guide as to the defendant’s claim concerning manner which the victim had been killed.5 majority asserts that there is no merit to the defendant’s claim that deadly force, the trial court’s instructions on the use of without more, “improperly jury’s influenced the consideration of intent because the repeated regarding trial court’s instructions the order in which the to decide the elements of the crimes ensured that it would not consider justification prior considering the elements of intent and causation.” majority opinion. disagree Footnote 17 of the I that the court’s enumeration required prove, namely, intent, of the three elements that the state was justification, causation and lack of was sufficient to inform the that it predicate finding acknowledge could not of intent on the defendant’s own against ment that he had used the victim. In the instruction, absence of such an was free to conclude that necessary defendant had formed the intent to commit the crime of intentional *40 use claimed of that the defendant’s true, course, It is complete is not a nondeadly force in self-defense of under manslaughter to the crime of intentional defense an of that because element This is so (a) (1). § 53a-55 physical infliction “serious is the intentional offense which injury “physical as injury,” a term is defined death, which causes creates a substantial risk health or impairment of disfigurement, serious serious bodily impairment of the function of loss or serious can 53a-3 There (4). § . . . .” General Statutes organ attempt claimed no doubt that the defendant’s be the wrist did the victim victim’s grabbing disаrm physical cause conduct intended to “serious constitute is defined contrast, “deadly physical In force” injury.” reasonably expected be “physical as which can .” . . . injury death or to cause serious Thus, 53a-3 (Emphasis added.) (5). § General Statutes the justified deadly force, it rather than is the use of nondeadly that serves as a defense to force, use of when manslaughter. Consequently, crime of intentional has inten- the state that a defendant committed alleges by that defendant that he manslaughter, tional a claim only nondeadly force in can- used self-defense responsibility him of for that not alone serve relieve present justifi- In case, crime. the defendant raised is, justified cation defense —that he claimed he was forcibly away the knife from the attempting to take victim advancing along with claim that the victim — when, accident, wholly by was killed the knife entered body victim’s during the altercation between victim and the defendant.6 merely manslaughter did, on basis of the defendant’s that he claim fact, Thus, use intend to force on the victim. the mere enumeration manslaughter of the elements of the offense of intentional was not a substi- primary theory an
tute for instruction the defendant’s of defense —a theory predicated not use on the claim that he did force— defendant’s repeated concerning because of the court’s instructions the defendant’s own assertion that he had used such force. 6 majority asserts that the defendant’s contention that he was because, legitimate force is not a claim self-defense represented
This claim theory defendant’s defense, and there was ample support it, evidence to namely, testimony. defendant’s own The trial court therefore was obligated instruct on that theory. so, defense In to do failing effectively court *41 jury’s removed that defense from the consideration. Instead, jury only the court instructed the on the defen- dant’s use of physical force. Because defen- expressly nondeadly dant testified that he had used force and deadly force, explain court’s failure to to the significance defendant’s claim that justifiably nondeadly he had used force, coupled with instructions, the court’s initial in repeatedly which it characterized the defendant as his use acknowledging deadly force, necessarily prejudicial. fact, In provided court with no guidance for evaluating the version of the facts set forth in testimony.7 his Connecticut, justification engaging self-defense is a for in “[i]n otherwise conduct'-, and, (emphasis original); according majority, criminal in to the claiming accidentally the defendant is that the victim was killed and not as Thus, majority that, a result of the defendant’s criminal conduct. asserts “[ajlthough language self-defense, the defendant cloaks his claim in the justification engaging he does not seek for in otherwise criminal conduct (Emphasis original; quotation major- omitted.) . . . .” in internal marks ity point. theory predicated, misses the The defendant’s of defense is in part, did, fact, engage on the claim that he in in conduct that otherwise criminal, namely, grabbing would have been the victim’s wrist an effort away words, to take the knife from him. In other the defendant’s conduct seizing against the victim’s wrist would have constituted a criminal assault reasonably necessary if
the victim the defendant had not believed that it was engage against in that conduct to defend himself the victim’s attack. It therefore is clear that the defendant’s conduct toward the victim would be justified, criminal if it were not found to be and that that conduct constituted component integral theory Consequently, an of the defendant’s of defense. the defendant was entitled to an instruction on his claim that he was nondeadly against the victim. majority justification 7 I note that the views claims of and accident as Appellate correctly observed; Single inconsistent. As the Court see ton, supra, n.17; App. necessarily those claims are not inconsis they tent, present they сontrary, do not conflict in the case. On the fully compatible theory, are with one another. Under the defendant’s the defen majority’s assertion, contrary to the Thus, not “theoreti nondeadly force was use of claimed dant’s expressly testified because the defendant cal” at all Moreover, force. use properly to have a constitutionally right protected had a he had used his claim that jury consider instructed inas to disarm the victim attempting nondeadly force such force was essential alleged his use of much as e.8 so was not Because theory of defens his was correct in conclud Appellate Court instructed, there to new trial.91 defendant is entitled ing fore dissent. *42 nondeadly against
justifiably the victim in an effort used accidentally away so, him, and, doing the knife from while the victim take nothing and killed. inconsistent about the defendant’s was stabbed There is Indeed, victim even if the had raised version of how the died. defenses, an instruction he still would have been entitled to inconsistent 58, 883, States, v. S. Ct. 99 them. See Mathews United 485 U.S. 108 on (1988). L. Ed. 2d 54 8 asserting on intent were In addition to that the trial court’s instructions defense, principal theory adequate jury to inform of the defendant’s testimony satisfactory provided majority contends the defendant’s accidentally jury which the find that the victim was killed basis on could attempting disarm the the defendant had used after majority testimony disagree with the excuses victim. I defendant’s theory trial court’s failure to instruct the defendant’s constitutionally present entitled both to accident because defendant is legal as to the her defense and to have the court instruct his or See, e.g., Lynch, supra, 287 State v. basis on which defense is founded. theory constitutionally (defendant of defense entitled “a Conn. 470 present case, instruction”). explained, I have the court failed As provide such an instruction. 9 uphold Appellate Court’s of the defendant’s Because I would reversal conviction, grounds for I need not the defendant’s alternative address Wheeler, Appellate See, e.g., affirming judgment. LLC & Court’s Sterns Inc., Kowalsky Bros., 1, n.9, (2008). A.2d Conn. 538