State v. Abdalaziz

• Decision Date: 20 April 1999
• Docket Number: (SC 15771)
• Citation: 729 A.2d 725,248 Conn. 430
• Parties: STATE OF CONNECTICUT v. MUHDYASIM ABDALAZIZ
• Court: Connecticut Supreme Court

248 Conn. 430

729 A.2d 725

STATE OF CONNECTICUT v. MUHDYASIM ABDALAZIZ

(SC 15771)

Supreme Court of Connecticut.

Argued December 3, 1998.

Officially released April 20, 1999.

Callahan, C. J., and Borden, Norcott, Palmer and McDonald, Js. Susan M. Hankins, assistant public defender, for the appellant (defendant).

Paul J. Ferencek, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Gary W. Nicholson, assistant state's attorney, for the appellee (state).

Opinion

NORCOTT, J.

In this certified appeal, we must decide whether the Appellate Court correctly concluded that the trial court: (1) properly refused to instruct the jury on the defendant's theory of imperfect self-defense; and (2) did not abuse its discretion in precluding the defendant from introducing into evidence certain of the victim's previous criminal convictions.¹ The defendant, Muhdyasim Abdalaziz, also known as Alfredo Cotto, was convicted by a jury of assault in the first degree in violation of General Statutes § 53a-59 (a) (1),² and carrying a pistol without a permit in violation of General Statutes § 29-35 (a).³ The defendant appealed to the Appellate Court claiming, inter alia, "that the trial court improperly (1) denied the defendant's request for instructions on lesser included offenses, (2) denied the defendant's request to instruct the jury on a theory of `imperfect self-defense,' [and] (3) improperly precluded the defendant from offering evidence of the victim's prior convictions...." State v. Abdalaziz, 45 Conn. App. 591, 593-94, 696 A.2d 1310 (1997). The Appellate Court agreed with the defendant concerning the request for an instruction on lesser included offenses and reversed the judgment of the trial court on the assault count and remanded the case for a new trial on that charge. Id., 594. The Appellate Court further concluded that the defense of imperfect self-defense is not recognized in Connecticut; id., 601; and that the trial court had not abused its discretion in precluding the defendant from introducing into evidence certain of the victim's prior convictions in order to establish the victim's violent character. Id., 605. We granted the defendant's petition for certification limited to these issues; State v. Abdalaziz, 243 Conn. 902, 701 A.2d 334 (1997); and now affirm the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following facts that the jury reasonably could have found. "The victim, Michael Juarbe, and the defendant's wife, Carmen Rodriguez, had a five year relationship that ended in January, 1991. The defendant's wife had one daughter from this relationship with the victim. The victim had visitation rights with this daughter. In the summer of 1991, the defendant married Rodriguez. The defendant and the victim had several confrontations leading up to April, 1992.

"On April 7, 1992, the defendant drove to the victim's New Haven apartment at approximately 10 p.m. Upon arriving at the victim's apartment, the defendant rang the doorbell located at the back door of the victim's premises. When the victim looked out his window, the defendant yelled to him to come out of the house to talk. The victim dressed and went to the front lawn of the apartment where he found the defendant standing on the sidewalk. The victim noticed that the defendant's car was parked in front of the premises and two men were sitting inside the vehicle. The victim and the defendant began to argue about the victim's visitation rights with his daughter and about telephone calls that were made by the victim to the defendant's home. The defendant eventually sat in the front passenger seat of his car. From that location, the defendant pulled a loaded revolver from under the car's seat and fired approximately five shots at the victim from a distance of six to nine feet. The victim was struck by four of the bullets and sustained serious injuries. After shooting the victim, the defendant and his two companions drove away in the defendant's car." State v. Abdalaziz, supra, 45 Conn. App. 594.

I

The defendant first claims that the Appellate Court was incorrect when it affirmed the trial court's refusal to instruct the jury on his theory of "imperfect self-defense." According to that theory, if the jury found that the defendant had an honest but unreasonably held belief in the need to use deadly force, it could find that he acted with the requisite specific intent corresponding to the greater offense, but also could mitigate the defendant's guilt downward to an offense that would be consistent with a less culpable mental state. Specifically, the defendant argues that the Appellate Court erroneously concluded that the defense of imperfect self-defense is not recognized in Connecticut.⁴ As support for this contention, the defendant claims that, in State v. Maselli, 182 Conn. 66, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981), and State v. Knighton, 7 Conn. App. 223, 508 A.2d 772 (1986), both this court and the Appellate Court implicitly have sanctioned the use of the imperfect self-defense doctrine as a theory of defense, so as to mitigate intentional conduct to the less culpable mental state of recklessness. As a result, the defendant argues that the court should have instructed the jury on an imperfect self-defense theory of defense, by which, if the defendant had an honest but unreasonable belief in the need to use deadly force, his culpability would be reduced from an intentional to a reckless mental state, thus rendering him guilty only of a lesser offense. We conclude that the doctrine of imperfect self-defense is not recognized in Connecticut and, therefore, was not available to the defendant. Accordingly, we affirm that portion of the decision of the Appellate Court.

A

We begin our review by setting out the differences between the doctrine of imperfect self-defense and an instruction on lesser included offenses. It is well settled that a defendant is entitled, under certain circumstances, to a jury instruction on lesser included offenses. In State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we constructed a four prong test whereby "[a] defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." (Emphasis added.)

As the fourth prong of the Whistnant test reflects, a defendant can be found guilty either of the greater offense or the lesser offense, but not both.⁵ A proper instruction on lesser included offenses is not, however, one that merely explains this "either or" requirement. In State v. Sawyer, 227 Conn. 566, 583, 630 A.2d 1064 (1993), we determined that, to assist the jury in making the transition from consideration of the greater offense to consideration of one or more lesser included offenses, the jury must receive an "acquittal first" instruction. "Only after it has confronted and unanimously completed the difficult task of deciding the guilt or innocence of the accused as to the charged offense should the jury consider lesser included offenses. Anything less dilutes the right of the state and the defendant to have the jury give its undivided attention and most serious deliberations to the offense with which the defendant is charged...." (Emphasis added.) Id.⁶

This scheme, of acquittal on the greater charge as a condition precedent to deliberation of charges for offenses requiring a lesser specific mental state, is wholly separate from the doctrine of imperfect self-defense. In Richmond v. State, 330 Md. 223, 623 A.2d 630 (1993), the Maryland Supreme Court accurately pinpointed the distinction between these two principles. A lesser included offense instruction is applicable where "a defendant not entitled to mitigation may present as a defense evidence of an honestly held though objectively unreasonable belief that is inconsistent with the specific intent required to convict." Id., 234. In contrast, the doctrine of imperfect self-defense applies where "[a] defendant may intend the exact result he brings about, but be entitled to mitigation because of the circumstances that caused him to act." Id.

The doctrine of imperfect self-defense is a doctrine of mitigation. Simply put, unlike our acquittal first process required for a lesser included offense instruction, under the doctrine of imperfect self-defense a jury must find that the defendant acted with the requisite mental state corresponding to the greater offense before the jury can consider mitigating downward to an offense that is consistent with a less culpable mental state.

The Appellate Court did not focus on this distinction in reaching its conclusion that the doctrine of imperfect self-defense is not recognized in Connecticut. The court distinguished Connecticut from Maryland and California, two jurisdictions where the doctrine of imperfect self-defense is recognized, based upon its determination that our murder statute does not include the element of malice,⁷ while the murder statutes of Maryland and California do include the element of malice.⁸State v. Abdalaziz, supra, 45 Conn. App. 601-603. Although the distinction essentially is accurate as to the jurisdictions discussed, it is nevertheless incomplete as a means of differentiating between the...