34 Conn. App. 691 | Conn. App. Ct. | 1994
The defendant appeals from the judgment of conviction, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (l).
The defendant was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (l).
To obtain review of these claims the defendant must satisfy all four of the conditions enunciated in State v.
Our Supreme Court has stated in Golding that, “[t]he defendant bears the responsibility for providing a record that is adequate for review of his claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to reconstruct the record, or to make factual determinations, in order to decide the defendant’s claim.” Id., 240. The record in this case does not provide an adequate basis for reviewing either of the defendant’s claims. It is insufficient to determine whether the jury disregarded the trial court’s instructions and continued deliberations after finding the defendant guilty of assault in the second degree, or if the jury foreperson was simply responding to the inquiry of the court regarding the two lesser included offenses with a verdict of not guilty because the jury did not deliberate these charges. The record is insufficient, as well, to determine whether the jury followed or disregarded the “acquittal first” instruction. To make such determinations, it would be necessary to remand the case to the trial court for further findings of fact. Because the first prong of the Golding analysis was designed to avoid
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-60 (a) provides in pertinent part: “A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person . . . .”
An “acquittal first” instruction requires the jury unanimously to find the defendant not guilty of the greater offense before it may consider a lesser included offense. See State v. Sawyer, 227 Conn. 566, 582, 630 A.2d 1064 (1993).
General Statutes § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument >>
We note that when a jury is instructed regarding lesser included offenses and it returns a verdict of guilty, either to the charged offense or to any lesser included offense, the inquiry by the court is to cease regarding any other lesser included offenses. See generally 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) § 4.6, p. 118.
It is therefore unnecessary to examine the remaining conditions as a claim must meet all four prongs in order to prevail. State v. Golding, supra, 213 Conn. 239-40.