State v. TerwilligerState v. Terwilliger
EVELEIGH, J. The defendant, David B. Terwilliger, appeals from the judgment of conviction, rendered after a jury trial, of one count of intentional manslaughter in the first degree with a firearm pursuant to
In 2005, the defendant was tried for the murder of Donald Kennedy (Donald). The jury acquitted the defendant of murder, but convicted him of the lesser included offense of manslaughter in the first degree with a firearm. See State v. Terwilliger, 294 Conn. 399, 403–406, 984 A.2d 721 (2009). The jury empaneled in the 2005 trial did not specify whether it found the defendant guilty of intentional manslaughter in the first degree with a firearm or reckless manslaughter in the first degree with a firearm. “The defendant appealed to the Appellate Court, which reversed the judgment of conviction and ordered a new trial after concluding that it was reasonably possible that the trial court‘s jury instruction on defense of premises misled the jury.” Id., 406. The state petitioned for certification, and this court affirmed the judgment of the Appellate Court. Id., 400–401. The defendant was retried in 2011. The state charged the defendant with two counts of manslaughter in the first degree with a firearm. Specifically, the state charged the defendant with one count of intentional manslaughter in the first degree with a firearm pursuant to
The jury reasonably could have found the following facts. The defendant is married to Beverly Daniels. Daniels is the mother of Christine Kennedy (Christine). Christine married Donald, and together they had three children, Shauna Kennedy (Shauna), Kathryn Kennedy (Kathryn), and James Kennedy (James). In 2003, Donald and Christine were not living together. Kathryn and her four year old daughter were living with the defendant and Daniels. Donald had also previously lived in the basement of the defendant‘s home with the defendant‘s permission, but since that time he had moved out and rented an apartment in Webster, Massachusetts.
At some point during the day on January 5, 2003, James had an altercation with another young man from the neighborhood, Steven Gardner, which resulted in Gardner striking James. That evening, the defendant was inside of his home with Daniels, Kathryn, and Kathryn‘s daughter, when Donald unexpectedly drove to the defendant‘s house and parked in the defendant‘s driveway. Another neighborhood young man, Ben Monahan, had just parked his car on the street with the intention of visiting Kathryn and James. When he walked up to the defendant‘s driveway, Donald stated to Monahan “I‘m drunk and I‘m pissed,” and that he wanted to “beat the shit out of [the defendant]” because of a recent incident between the defendant and James. At one point, Donald asked Monahan if he wanted to go fight some people who were standing near a car across the street. Monahan demurred, and Donald then saw Gardner, who was also hoping to visit Kathryn that evening, walking toward the defendant‘s residence. According to Monahan, Donald “yell[ed] ‘[y]ou hit my son’ [and] something along the lines of ‘I‘m going to kick your ass’ or ‘[n]o one hits my son.’ ” Donald then grabbed Gardner, shoved him against a car at least once and possibly struck Gardner at least once in the face. Kathryn and Daniels both witnessed the confrontation from inside the house. Kathryn yelled at Donald, asking him to stop his behavior, while Daniels urged the defendant to go outside and defuse the situation. The defendant replied that he would “handle [the situation] however the hell [he] want[ed].” Before leaving the house, the defendant took from his desk a revolver that he had previously loaded with hollow point bullets and placed it into the pocket of his coat, where it was concealed. The defendant went outside and confronted Donald. Donald may have made a comment “like, ‘[c]ome on, let‘s get this started.’ ” According to Kathryn, the two men stared at each other. Then, the defendant walked up to Donald and kicked him in the groin, drew the revolver from his coat pocket, and fired it once. The bullet struck Donald in the lower chest and did not exit, causing him to fall to the ground. Daniels immediately called 911 and requested that emergency personnel arrive at the scene, while Kathryn took her daughter and ran to a neighbor‘s house. The defendant walked over to the house of another neighbor, Frank Langlois, and, after initially being resistant, handed the jacket containing the revolver over to Langlois. Langlois then went to check on Donald. Langlois observed that Donald was in possession of a closed folding knife that was attached to a chain connecting Donald‘s wallet to his pants, and Langlois detected a strong odor of alcohol. A subsequent autopsy revealed Donald‘s blood alcohol level was 0.15.
Prior to the defendant‘s second trial in 2011, the defendant moved to dismiss the prosecution, claiming that the continued prosecution of him for the events that occurred on January 5, 2003, constituted a violation of his right against double jeopardy. The trial court denied the motion, relying on State v. Boyd, 221 Conn. 685, 691, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992), and concluded that, by failing to take steps to clarify the jury‘s verdict following the first trial while simultaneously seeking reversal of his conviction, the defendant had waived his right against double jeopardy. The defendant moved for reconsideration of the denial of his motion to dismiss, and the trial court, again relying on this court‘s decision in Boyd, denied the motion. The defendant subsequently renewed his motion following the trial.
In addition, at trial, the defendant specifically requested a jury instruction on defense of premises pursuant to
I
The defendant first claims that, because the state cannot demonstrate that there is not a reasonable possibility that the defendant was acquitted of intentional manslaughter in the first degree with a firearm by the jury following his trial in 2005, his 2011 conviction for intentional manslaughter in the first degree with a firearm pursuant to
The following additional facts and procedural history are relevant to this issue. During the first trial, the theory of the state‘s case against the defendant was that he had acted with the intent to kill Donald. The prosecution relied on the following evidence in an attempt to show intent: (1) statements that the defendant made to Donald shortly before he shot him, which indicated that the defendant would shoot Donald if he did not leave; (2) evidence indicating that the defendant initially hid the gun from Donald by placing the gun in his coat pocket, which the state claimed was for the purpose of not alerting Donald to the gun‘s presence until the defendant decided to use it; (3) expert testimony that established that the defendant fired the gun at a distance of less than three inches from Donald‘s chest; (4) testimony that the defendant knew the gun was loaded with hollow point bullets; (5) testimony suggesting that the defendant was the initial aggressor by kicking Donald; (6) evidence indicating that the defendant did not call the police or take any other ameliorative action after shooting Donald; and (7) a statement made by the defendant to police indicating that, in the days leading up to the shooting, he experienced a recurring dream in which he shot a masked person who had been robbing the defendant‘s home.
Correspondingly, the defendant‘s primary theory of defense during the first trial was that he had been justified in using deadly force against Donald. To counter the prosecution‘s theory of the case, the defendant relied primarily on evidence and testimony indicating that: (1) Donald had a reputation for being a violent person; (2) Donald was intoxicated; (3) Donald was carrying a closed folding knife on his person, of which the defendant was aware; and (4) during the confrontation, Donald had knocked a telephone from the defendant‘s hand and made several threatening statements, the most serious of which was a threat to assault or possibly kill Daniels. The defendant, however, also advanced a second theory during the first trial, namely, that the defendant had not acted with any kind of intent. This theory was supported primarily by a statement made by the defendant during his testimony, in which he stated that Donald had “jump[ed]” at him during the confrontation, as a result of which the defendant‘s gun went off.
We now turn to the applicable standard of review and governing legal principles. “The defendant‘s double jeopardy claim presents a question of law, over which our review is plenary. . . . The fifth amendment to the United States constitution provides in relevant part: No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . . The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment.” (Citation omitted; internal quotation marks omitted.) State v. Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009). “We have recognized that the [d]ouble [j]eopardy [c]lause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Internal quotation marks omitted.) Id.
We now examine the merits of the defendant‘s claim.5 The defendant claims that the present case involves the joinder of a jeopardy barred offense with a permissible charge. As a result, the defendant asserts, the state must prove beyond a reasonable doubt that there was no reasonable possibility that the defendant was prejudiced by the joinder. In other words, the defendant claims that the state must prove that it is not reasonably possible that the jury in the 2005 trial acquitted the defendant of intentional manslaughter in the first degree with a firearm as defined in
The defendant claims that the situation at issue in the present case is similar to the one this court faced in State v. Hedge, 297 Conn. 621, 1 A.3d 1051 (2010). In Hedge, the defendant was charged with, inter alia, possession of cocaine with intent to sell by a person who is not drug-dependent in violation of
This court also stated in Hedge that “[a]s a general matter, when the state charges a defendant in separate counts with a jeopardy barred offense and an offense that is not so barred, and the jury finds the defendant guilty on both counts, the defendant is entitled to a new trial on the nonbarred offense unless the state is able to prove beyond a reasonable doubt that the joinder of the two charges did not prejudice the defendant.” Id., 666–67. Because this court could not be certain that the jury had not found the defendant guilty on the charge of unlawfully transporting a narcotic substance with intent to sell by a person who is not drug-dependent in violation of
This court ultimately concluded in Hedge that, in a subsequent retrial, the state would be able to show beyond a reasonable doubt that the defendant had not been acquitted of unlawfully transporting cocaine with intent to sell, given that (1) in a separate count, the same jury found the defendant guilty of possession of cocaine, and (2) the drugs recovered by the police consisted of 189 packages of cocaine and 15 “folds” of heroin, and 100 of the packages of cocaine were found in the same bag as the folds of heroin. Id., 669. As a result, this court concluded that “it is virtually inconceivable that the jury found the defendant guilty of transporting narcotics with intent to sell on the basis of the defendant‘s possession of heroin but also found that he had not transported with intent to sell the much larger quantity of cocaine, which was found in the very same container as the heroin.” Id.
The defendant claims that, akin to the situation in Hedge, the state cannot show beyond a reasonable doubt in the present case that he was not acquitted of intentional manslaughter in the first degree with a firearm at his first trial. During the first trial in 2005, the trial court instructed the jury that it could find the defendant guilty of manslaughter in the first degree with a firearm if it concluded that the defendant acted intentionally or if it concluded that the defendant acted recklessly while engaging in conduct that created a grave risk of death to another person and actually caused the death of that person. See
The state claims that Hedge is distinguishable because, unlike the situation in Hedge, there has been no clear acquittal in the present case. Specifically, the state claims that the defendant here failed to clarify the initial verdict of the jury and, thus, failed to preserve his claim that the second prosecution violated his right against double jeopardy. To the extent that this court may review unpreserved constitutional claims pursuant to Golding, the state claims that the record is inadequate for review because the defendant has not shown that a constitutional violation “clearly exists.” In addition, the state contends that the defendant cannot demonstrate that an acquittal necessarily occurred in the present case because, the state claims, this court has previously held in State v. Rodriguez, 180 Conn. 382, 403–405, 429 A.2d 919 (1980), that a mental state involving a specific intent to commit a crime and the mental state of recklessness are not inconsistent with one another for purposes of charging lesser included offenses.
The defendant contends that, in finding the defendant guilty of manslaughter, the jury at the defendant‘s first trial must have necessarily determined that he committed the crime with either the requisite intent or recklessly. See
In State v. King, 216 Conn. 585, 592–95, 583 A.2d 896 (1990), this court held that a person cannot act both intentionally and recklessly at the same time. See id., 593–94 (Relying on, inter alia, this court‘s decision in State v. Beccia, 199 Conn. 1, 4, 505 A.2d 683 [1986], this court concluded that “[t]he intent to cause death required for a conviction of attempted murder . . . necessitated a finding that the defendant acted with the conscious objective to cause death. The reckless conduct necessary to be found for a conviction of assault under the subsection charged . . . required a finding that the defendant acted without such a conscious objective” and that “the statutory definitions of ‘intentionally’ and ‘recklessly’ are mutually exclusive and inconsistent. ‘Reckless conduct is not intentional conduct because one who acts recklessly does not have a conscious objective to cause a particular result.’ . . . Therefore, the transgression that caused the victim‘s injuries was either intentional or reckless; it could not, at one and the same time, be both.” [Citation omitted.]).
During jury instructions, the trial court gave the jury an “acquittal first” instruction,7 an instruction on the elements of the crime of manslaughter in the first degree with a firearm,8 and the relevant definitions of the terms “intent” and “reckless.” During its instructions on the elements of manslaughter in the first degree as it is defined in
Both subdivisions (1) and (3) of
As the defendant states in his brief, in asserting that the state had the burden to show that there was no reasonable possibility of an acquittal, “any attempt to divine the factual basis of the first jury‘s verdict would have been speculative, futile, and disingenuous . . . .” This is a critical distinction between the present case and the situation in Hedge. In Hedge, at the conclusion of his first trial, the judge clearly dismissed the charge of possession of opium because there was no proof that the defendant had possessed opium, thus preventing the state from relitigating this point in a subsequent trial. See State v. Hedge, supra, 297 Conn. 662–66. In the present case, the jury‘s verdict, as acknowledged by both parties, was ambiguous as to its decision regarding the defendant‘s mental state. The evidence presented at the first trial, and the arguments made by the parties therefrom, as described previously in this opinion, was entirely consistent with a jury verdict convicting the defendant of either intentional or reckless manslaughter in the first degree. Thus, the jury verdict did not necessarily depend on a finding that the defendant lacked the intent to inflict a serious physical injury on Donald. Therefore, we would have to resort to speculation in order to divine the jury‘s intention. We decline the defendant‘s invitation to do so.
We are not the first court to choose to avoid undue speculation when faced with a general jury verdict that convicts the defendant of a single offense but is ambiguous as to the specific theory on which the jury relied in rendering its verdict. Numerous courts, when wrestling with the issues presented by similar verdicts, have found that this sort of general verdict does not have the same preclusive effect as would a general verdict of acquittal. See, e.g., United States v. Garcia, 938 F.2d 12, 13–16 (1991), cert. denied, 502 U.S. 1030, 112 S. Ct. 868, 116 L. Ed. 2d 774 (1992); State v. Wright, 165 Wn. 2d 783, 790–91, 796–803, 203 P.3d 1027 (2009). For example, in Garcia, the defendants were charged with, inter alia, extortion, and at their first trial the prosecutor argued that the defendants could be convicted of this crime pursuant to either one of two alternative legal theories, “extortion by wrongful use of fear and . . . extortion under color of official right.” United States v. Garcia, supra, 13. The jury convicted the defendants of extortion, but did not indicate which of the two theories advanced by the prosecution it had accepted. Id. On an earlier appeal, the Second Circuit Court of Appeals had determined that, because the jury‘s reasoning in arriving at the conviction was ambiguous, the court could not conclude that the jury had ascribed to the first theory advanced—extortion by wrongful use of fear—which, the court concluded, should not have been presented to the jury in the first place. Id. As a result, the court vacated the defendants’ convictions. Id. The defendants were then retried, with the prosecution advancing only the second, permissible legal theory. Id. The defendants filed a motion to dismiss with the trial court retrial, claiming that this second prosecution was barred by the double jeopardy clause. Id. When the issue made its way to the court on appeal, the Second Circuit rejected the defendants’ argument. It contrasted the situation in Garcia with the seminal case United States v. Green, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), in which the United States Supreme Court held that a jury‘s silence on one charge may sometimes operate as an implicit acquittal.11 The Second Circuit noted that “[i]n the present case . . . the [defendants] were convicted on the contested charge, and the only unanswered question was under which of two extortion theories the jury had based its conviction. And since the jury was never asked to state the basis for its conviction on the extortion charge, its silence on the question, unlike the silence of the jury in Green, signifies nothing. The conclusion that the [defendants] ask us to accept regarding the extortion theory involves unacceptable speculation—which was precisely the reason that we reversed the [defendants‘] convictions in the first place.” United States v. Garcia, supra, 15. In some respects, the present case is even stronger than the one faced by the Second Circuit in Garcia, because the defendant here has not raised a sufficiency of the evidence claim with regard to either relevant theory of first degree manslaughter.
Similarly, Wright involved a case in which two defendants had each been convicted of second degree murder, but it was unclear pursuant to which theory each defendant had been convicted—intentional murder or felony murder. See State v. Wright, supra, 165 Wn. 2d 788–91. The Washington Supreme Court then decided two cases, In re Personal Restraint of Andress, 147 Wn. 2d 602, 605, 56 P.3d 981 (2002), and In re Personal Restraint of Hinton, 152 Wn. 2d 853, 857, 100 P.3d 801 (2004), which invalidated one of the potential alternative theories on which the defendants’ convictions had rested. The defendants in Wright both challenged the ability of the state to retry them on the remaining potential alternative on which their second degree murder convictions had rested, claiming that to permit the state to do so would violate the double jeopardy clause of the fifth amendment to the United States constitution. State v. Wright, supra, 791–93. The Washington Supreme Court rejected the defendants’ claim, relying in large part on a footnote by the United States Supreme Court in Green: “[In] Green [the United States Supreme Court] stated, ‘[i]t is immaterial whether second degree murder is a lesser offense included in a charge of felony murder or not. The vital thing is that it is a distinct and different offense.’ [United States v. Green, supra, 355 U.S. 194 n.14] . . . . Unlike in Green, this case does not involve a separate offense; it involves alternative means of committing a single offense. . . . Neither the United States Supreme Court nor this court has ever concluded a jury‘s silence bars retrial on an alternative means of committing a single offense . . . .” (Citation omitted; emphasis in original.) State v. Wright, supra, 798.12
The statute pursuant to which the defendant was charged and convicted creates only one crime—manslaughter in the first degree—and treats the two subdivisions at issue here as alternative ways to commit that crime. See State v. Marino, 190 Conn. 639, 650–51, 462 A.2d 1021 (1983) (describing three subdivisions of
The statute at issue in the present case,
Further, this case does not present a situation that the double jeopardy clause was intended to prevent. In this opinion, we previously have noted the express purposes of the double jeopardy clause. First, there is no showing that there was a second prosecution in this case after an acquittal. We simply do not know, and will not speculate on, the jury‘s decision. Second, there was no prosecution for another offense after a conviction due to the appeal. Third, in view of the nature of the statute, there were not multiple punishments for the same offense. We are, therefore, confident that there was no double jeopardy violation established in this case.
The utter lack of prejudice to the defendant under the unique circumstances of this case buttresses our conclusion that the defendant‘s double jeopardy rights have not been violated. The Second Circuit has counseled that, in a retrial, there should be “no reasonable possibility that [a] violation of [the defendant‘s] constitutional rights worked to his prejudice.” United States ex rel. Hetenyi v. Williams, 348 F.2d 844, 866–67 (1965), cert. denied sub nom. Mancuse v. Hetenyi, 383 U.S. 913, 86 S. Ct. 896, 15 L. Ed. 2d 667 (1966). We are confident that there was no prejudice to the defendant in the present case.
In the present case, the evidence presented at both trials by the state would have been admissible regardless of the implicit acquittal by the jury of one of the charged subdivisions of
In this respect, the present case is similar to United States ex rel. Jackson v. Follette, 462 F.2d 1041 (2d Cir.), cert. denied sub nom. Jackson v. Follette, 409 U.S. 1045, 93 S. Ct. 544, 34 L. Ed. 2d 496 (1972). In Follette, the defendant was accused of murdering a police officer following an armed robbery of a hotel and charged with both felony murder and premeditated murder, both of which qualified as “murder in the first degree” under the relevant state statute. Id., 1043. During his first trial, the jury was instructed that “if it returned a verdict on one count it was to remain silent on the other.” Id. The jury returned a verdict of guilty for premeditated murder, and said nothing regarding the charge of felony murder. Id. The defendant‘s conviction was affirmed on direct appeal, but the defendant ultimately successfully overturned his conviction based on a procedural challenge. Id.; see also Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The state retried the defendant on charges of both premeditated murder and felony murder. United States ex rel. Jackson v. Follette, supra, 1044. At this second trial, the jury convicted the defendant only of felony murder. Id. On appeal, the defendant claimed that his conviction for felony murder violated his right against double jeopardy because the jury at his first trial had either acquitted him of felony murder or else it had been “dismissed without his consent after having been given a ‘full opportunity to return a verdict’ on that charge without any circumstances appearing that prevented it from doing so.” Id., 1045. The court agreed with the defendant that he had been “exposed to ‘a risk of conviction’ for felony murder on his first trial” but, given that both felony murder and premeditated murder both qualified as “first degree murder” it was unclear whether conviction of only one and silence as to the other qualified as an acquittal. Id., 1045–46. The court acknowledged that “the facts in this particular case justified a charge of either . . . .” Id., 1048. The court ultimately concluded that “[w]e have, in short, a case that is sui generis, not controlled by any Supreme Court case on its facts, and not capable of simple resolution either on an historical or logical basis. Without disregarding the teachings of history or of the cases, we come to the point where we must weigh on a fine scale the competing interests of the public and [the defendant].” (Footnotes omitted.) Id., 1049. The Second Circuit thus balanced “fairness to society in obtaining a verdict on a proper indictment and the avoidance of undue vexation to the defendant by a retrial on both original charges . . . .” Id. The court noted that there did not appear to be any evidentiary prejudice to the defendant as a result of the retrial, and that both parties had previously had opportunities to cure the ambiguity that resulted when the first jury was silent as to the charge of felony murder. Id. As a result, it concluded that “[f]airness to the public appears to us to demand that a valid indictment end in a verdict where there has been no conviction of a lesser-included offense . . . no mistrial by virtue of the court‘s action sua sponte without the defendant‘s consent . . . and where the cause for reversal of the conviction of the co-equal offense is reversible error in the admission of evidence, at least where, as here, the same evidence is admissible (or inadmissible) as proof of either offense charged . . . . Nor is there any substantial unfairness to [the petitioner]. . . . [The defendant] in any event would have been subject to retrial on the premeditated murder count, and . . . retrial on the felony murder count did not subject him to a greater penalty or stigma or greater embarrassment, expense or ordeal.” Id., 1050.
Applying similar logic in the present case, it cannot be contested that the first jury concluded that the defendant had committed the crime of manslaughter in the first degree pursuant to either subdivision (1) or (3) of
We note that the defendant had an opportunity to clarify the verdict at his first trial, and did not do so. We have not previously held that a defendant has any affirmative obligation to clarify a general or otherwise ambiguous verdict in order to preserve a subsequent double jeopardy violation, nor will we do so today.15 We find it appropriate, however, to consider the defendant‘s failure to clarify the verdict at his first trial when examining the potential prejudice of the claimed double jeopardy violation during the latter trial. Had the defendant taken steps to clarify the first jury‘s verdict, he would have been able to eliminate all speculation as to whether his subsequent conviction was obtained in violation of his fifth amendment rights. More importantly, given the ambiguity that existed following the general verdict, we cannot conceive of a way for the state to have proceeded following the initial reversal of the defendant‘s conviction that would have not given rise to the defendant‘s double jeopardy argument. Even if the state had charged the defendant at the second trial with only intentional manslaughter in the first degree, the defendant would have been able to credibly make the argument that, since the evidence presented at his first trial also supported a conviction based on either the reckless or intentional theory, the first jury might well have convicted him based on the former theory, which, assuming without deciding that we would follow the dictates of King, would have acquitted him of the latter. Had the defendant taken it upon himself to clarify the record, no ambiguity would have existed, and we would not have had to speculate regarding the jury‘s verdict.
Finally, we note that although the defendant has a valid interest in not being subjected to successive prosecutions, this interest is counterbalanced by that of the public in preserving a valid conviction. We emphasize that this is not a situation in which the state treated the first trial against the defendant as a “dry run“; cf. Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970); but instead presented essentially the same case and made the same arguments against the defendant in both trials. The consequences for both alternatives are identical, and the state was unquestionably permitted to retry the defendant under either subdivision (1) or (3) of
For the foregoing reasons, and limited to the extremely unusual circumstances presented by the present case, we conclude that the double jeopardy clause of the fifth amendment to the United States constitution does not require the defendant‘s conviction of manslaughter in the first degree with a firearm pursuant to
II
The defendant next contends that he is entitled to a new trial because the trial court‘s jury instruction regarding defense of premises included a definition of the term “crime of violence” that was “too narrow and vague,” and because the trial court declined to instruct the jury on the elements of those offenses that it included in the definition of “crimes of violence.” Although we agree with the defendant to the extent that he suggests the definition provided by the trial court for the term “crime of violence” was incorrect, we conclude that the defendant was not entitled to an instruction on the elements of the various statutory offenses that he claims constitute “crimes of violence.”
We first address the proper standard of review. “A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. . . . An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. . . . [T]he standard of review to be applied to the defendant‘s constitutional claim is whether it is reasonably possible that the jury was misled. . . . In determining whether the jury was misled, [i]t is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect [on] the jury in guiding [it] to a correct verdict in the case. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . In reviewing the trial court‘s failure to charge as requested, we must adopt the version of facts most favorable to the defendant which the evidence would reasonably support. . . . A challenge to the validity of jury instructions presents a question of law over which [we have] plenary review.” (Citations omitted; internal quotation marks omitted.) State v. Terwilliger, supra, 294 Conn. 411–12.
The defendant contends that the definition of the term “crime of violence” as it is used in
The state contends that, although it did not do so in the defendant‘s requested terminology, the trial court‘s instruction on defense of premises incorporated all of the defendant‘s requested included offenses except for third degree assault, and also included several offenses that the defendant had not requested. The state also asserts that, rather than looking to the term “crime of violence” as it is defined by the Board of Parole or in
The following additional facts and procedural history are relevant to this issue. The defendant requested that the court instruct the jury on several defenses, including defense of premises as defined in
In particular, the trial court disagreed with the defendant‘s proposed instruction regarding the term “crime of violence” as it is used in
The state objected to the defendant‘s proposed instruction, claiming that it was not a correct statement of law to say that the defendant would have been justified to use deadly force against Donald to prevent an assault in the third degree against someone inside the defendant‘s home. In addition, the state objected to the defendant‘s proposed instruction on this issue because it felt that it would be too confusing to the jury to define each statutory offense that conceivably qualified as a “crime of violence.”
The trial court agreed with the state, explaining that the common-law definition of “crimes of violence” included only felonies, and, thus, found that the use of deadly force to prevent a third degree assault would not be warranted. The trial court further concluded that there was no evidence to support a finding that the defendant had acted in defense of any person inside his home, nor was there any evidence indicating that Donald was attempting to commit a burglary when he was shot by the defendant. The trial court, however, agreed to include the crime “burglary” in a list of crimes that it gave to the jury as examples of crimes which might qualify as “crimes of violence” for purposes of
Our resolution of this issue turns on the meaning of the term “crime of violence,” as it is used in
“In discussing the codification of the law of self-defense in
The law of defense of premises was initially codified when the legislature passed the first iteration of Connecticut‘s Penal Code through the passage of a Public Act during the 1969 session of the General Assembly. See Public Acts 1969, No. 828, § 20. At that time, the relevant language of the statute provided that a person could use deadly force in defense of premises “when he [or she] reasonably believes it is necessary to prevent an attempt by the trespasser to commit arson . . . .” Public Acts 1969, No. 828, § 20. The term “crime of violence” did not appear until the Penal Code was amended during the 1973 session of the General Assembly when the term was added—without discussion—immediately following the word “arson.” See Public Acts 1973, No. 73-639 § 2. Thus, the legislature has not yet precisely defined the term “crime of violence.” However, the Commission to Revise the Criminal Statutes, the drafters of the original section, indicated in a comment that the language contained in
In Perkins, the defendant offered evidence that she had shot and killed the decedent, her estranged husband, under the following circumstances. “[The decedent] came to the house of the [defendant] and demanded admission, which was refused, and he immediately proceeded to break down the doors of the house, all the while threatening to kill the [defendant]. After he had broken down the storm-porch door, the [defendant] warned him that she had two revolvers, and that if he broke through the double house-doors and attempted to come in she would shoot him. Notwithstanding this warning [the decedent] continued his violent assault upon the double doors, and, as the right-hand door was giving way, he said to the [defendant], with an oath: ‘Now I‘ve got you, and I‘ll cut your guts out.’ The [defendant], at the time of his breaking into her house believed that the [decedent] intended to carry out his threats to kill her, and believed that her life was in imminent danger from [decedent] . . . . After the [defendant] had warned the [decedent] that she would shoot if he broke in, and after he had broken down the right half of the house-doors, and was attempting to enter, the [defendant] attempted to fire a revolver at him, but it would not work. She then thought of the shotgun, which was kept [nearby], and fired at [the decedent]. The [defendant] shot the [decedent], as he was breaking into the house, to prevent his entering and taking her life.” State v. Perkins, supra, 88 Conn. 362. Under these circumstances, this court determined that “[t]he evidence and claims of the parties were such as to require a charge upon the theory that [the defendant‘s] motive in shooting the [decedent] was to save her own life or to protect herself from bodily harm. An assault on one‘s house can be regarded as an assault on the person, within the meaning of the law with reference to self-defense, where the purpose of the assault is an injury to the person of the occupant or members of his family, to accomplish which the assailant attacks the house in order to reach the inmate. In this connection it is . . . settled, that . . . the [defendant] . . . may meet [an assailant] at the threshold, and prevent him from breaking in, by any means rendered necessary by the exigency; and, upon the same ground and reason, that one may defend himself from peril of life, or great bodily harm, by means fatal to the assailant, if rendered necessary by the exigency of the assault.” (Emphasis added.) Id., 363–64. This court cited State v. Patterson, 45 Vt. 308, 320–21 (1873) for that proposition, which contains essentially the same language.
In the present case, the trial court‘s instruction defined the term “crime of violence” to mean “a crime committed with violence” and provided examples of such crimes, namely “murder, manslaughter, rape, robbery, arson, burglary, assault with the specific intent to cause great bodily harm or assault in which a risk of great bodily harm was created.” This instruction is consistent with the sentiment expressed by this court in Perkins, which indicated that the common-law understanding of defense of premises authorized the use of deadly force only when the defendant felt that the threat posed by an assailant or invader on the defendant‘s premises posed at least a risk of great bodily harm. See State v. Perkins, supra, 88 Conn. 363–64. In addition, this court has previously set out a list of crimes that were considered “crimes of violence” at common law in a case in which a defendant booby-trapped his blacksmith shop to prevent anyone from breaking and entering: “The class of crimes in prevention of which a man may, if necessary, exercise his natural right to repel force by force to the taking of the life of the aggressor, are felonies which are committed by violence and surprise; such as murder, robbery, burglary, arson, breaking a house in the day time with intent to rob, sodomy and rape.” (Emphasis omitted.) State v. Moore, 31 Conn. 479, 483 (1863). This court has previously relied on this list to establish those crimes against which a person could justifiably use deadly force at common law. See State v. Havican, supra, 213 Conn. 599.
Of course, as the state points out, if a defendant reasonably believed that an actor today were about to commit many of the crimes listed by the court in its “crime of violence” instruction in the present case, then that defendant would already have been authorized to utilize deadly force against the actor in defense of premises pursuant to the other language contained in
We think it is significant that, when codifying this state‘s law on defense of premises, the legislature expressly listed the crime of arson immediately before the term “crime of violence.” Under the doctrine of ejusdem generis, “when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed.” Black‘s Law Dictionary (9th Ed. 2009). Thus, the phrase “crimes of violence” must consist only of those crimes that were considered “violent” at common law, and, within that class of crimes, only those crimes the elements of which do not necessarily involve either the use of deadly force or the infliction of great bodily harm. Of the offenses requested to be included by the defendant, only the offenses of burglary and arson meet both of these prerequisites.
The issue, then, is whether the defendant was entitled to have the jury instructed on the elements of burglary or arson when the trial court instructed the jury as to the meaning of the term “crime of violence.” Even if we were to assume that, in a proper case, the defendant might be entitled to an instruction on the elements of these offenses or others that might fall within this definition of the term, we conclude that the defendant was not entitled to an instruction in the present case. Although the defendant has challenged the trial court‘s definition of the term “crime of violence,” and its failure to instruct on the individual elements of each crime to fall within this definition, the defendant has not challenged on appeal the trial court‘s determination that there was no evidence whatsoever that Donald was attempting a burglary at the time of the incident, nor has the defendant challenged on appeal the trial court‘s refusal to instruct the jury that the defendant could have been acting in defense of the persons within the defendant‘s home at the time of the incident.
The situation, in this respect, is not unlike the situation faced by the court in State v. Bryan, 307 Conn. 823, 60 A.3d 246 (2013). In Bryan, the defendant challenged the trial court‘s refusal to instruct the jury regarding the law on defense of others. Id., 830–31. We concluded that the trial court properly rejected the defendant‘s request. Id., 836. “[I]n order to submit a defense of others defense to the jury, a defendant must introduce evidence that the defendant reasonably believed [the attacker‘s] unlawful violence to be imminent or immediate. . . . Under . . .
Here, the trial court‘s rulings finding a lack of evidence to support inferences that either (1) Donald was attempting to commit a burglary, or (2) the defendant was acting in defense of the persons located inside of his home at the time of the shooting, lead inevitably to the conclusion that no reasonable jury would be able to find that any subjective belief that may have been held by the defendant that Donald was attempting to commit burglary or arson was objectively reasonable.19 As a result, any error of the trial court in instructing the jury on the elements of these two crimes was harmless beyond a reasonable doubt. Cf. State v. Lemoine, 256 Conn. 193, 199–200, 770 A.2d 491 (2001) (concluding no constitutional error in self-defense instruction existed where court did not instruct jury on defendant‘s duty to retreat, because duty of retreat “not relevant to the . . . case because the state did not argue to the jury that the defendant should have retreated” and ultimately concluding that “[b]ecause the state made no claim that the defendant should have retreated . . . the defendant did not suffer constitutional harm by the trial court‘s omission of an unnecessary and potentially confusing instruction on the duty to retreat“).
In summary, we conclude that the term “crime of violence” as it is used in
The judgment is affirmed.
In this opinion ROGERS, C. J., and PALMER and McDONALD, Js., concurred.
Notes
Manslaughter in the first degree is defined in
“(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he or she knows that he or she can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he or she is in his or her dwelling, as defined in
“(c) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor, except that his use of physical force upon another person under such circumstances is justifiable if he withdraws from the encounter and effectively communicates to such other person his intent to do so, but such other person notwithstanding continues or threatens the use of physical force, or (3) the physical force involved was the product of a combat by agreement not specifically authorized by law.”
Similarly, we conclude that the trial court‘s ruling that it was not objectively reasonable for the jury to consider whether the defendant was acting in defense of Daniels, Kathryn, or Kathryn‘s daughter also rendered it impossible for a reasonable jury to conclude that any subjective belief by the defendant that Donald was attempting to commit arson was objectively reasonable. Although it is not an essential element of the crime of arson to intend harm to the occupants of a building; see, e.g.,