State v. Alston

• Decision Date: 10 December 1985
• Docket Number: No. 2812,2812
• Citation: 5 Conn.App. 571,501 A.2d 764
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Connie J. ALSTON.

Page 764

501 A.2d 764

5 Conn.App. 571

STATE of Connecticut v. Connie J. ALSTON.

No. 2812.

Appellate Court of Connecticut.

Argued Oct. 1, 1985.

Decided Dec. 10, 1985.

Eugene J. Riccio, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (State).

Before DUPONT, C.J., and HULL and BORDEN, JJ.

HULL, Judge.

The defendant was convicted, after a trial to a jury, of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3). ¹ She appeals this conviction claiming that the trial court erred by failing to instruct the jury concerning the general intent required for commission of manslaughter in the first degree. Because we conclude that the court's instructions could not possibly, in the context of the factual issues raised at trial, have misled the jury, we find no error.

The charges arose from a dispute between the defendant and her sister, Pamela Alston, during which the defendant stabbed Pamela fatally. While there was conflicting testimony as to the circumstances surrounding the stabbing, the jury reasonably could have found the following facts. On the date of the incident, the defendant was angry with her sister because she believed that Pamela had stolen some money from her. The defendant's brother, James Alston, located Pamela and brought her to the defendant. Prior to confronting Pamela, the defendant picked up a kitchen knife. With the knife in hand, the defendant grabbed Pamela by the collar, and slapped her in the face twice with the flat part of the knife, while demanding that her money be returned. Thereafter, the defendant stabbed her sister.

The defendant's sole claim on appeal is that the trial court failed to charge the jury properly concerning the general intent element of manslaughter under General Statutes § 53a-55(a)(3). The state, however, argues that this claim of error should not be considered because the defendant neither requested a charge on general intent nor excepted adequately to the charge as given.

"Our general rule is that '[t]he appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.' Practice Book §§ 854, 3063; see also Practice Book § 3060F(c)(1) and (2)." State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984). Additionally, the exception taken must "state distinctly the matter objected to and the ground of the exception." (Emphasis added.) Practice Book § 854. This requirement is imposed so that the trial court will be made aware of claims of error in time to take appropriate remedial steps. State v. Packard, 184 Conn. 258, 281, 439 A.2d 983 (1981). Accordingly, a trial court's instructions to the jury will not be considered as error on appeal if the exception taken was "insufficient adequately to apprise the court of the deficiency in the charge in a manner which would permit the court to make a correction." State v. Peary, 176 Conn. 170, 182, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S.Ct. 2417, 60 L.Ed.2d 1072 (1979).

Here, counsel for the defendant did not submit a written request to charge on general intent. He did, however, object to the charge the trial court gave. ² In making his objection, counsel argued that "the definition of the elements 'extreme indifference' and the definition of recklessness itself ... seem to indicate at least some type of intent." (Emphasis added.) Counsel further stated: "I think the definition of those two terms require[s] an intent." Counsel, however, never specified what type of intent should have been charged. Nor did he "state distinctly" how the charge as given was inadequate. Under these circumstances, it cannot be said that the trial court was adequately "apprise[d] ... of the deficiency in the charge." Id.

The defendant argues that if the exception was inadequate, her claim still may be reviewed under State v. Evans, 165 Conn. 61, 65-66, 327 A.2d 576 (1973). The state contends that this case is not one which warrants such review. Under the Evans bypass rule "we must first determine whether the charge raises a question of constitutional dimension and, if so, whether the claim has merit. State v. Kurvin, 186 Conn. 555, 557, 442 A.2d 1327 (1982); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973)." State v. Torrence, 1 Conn.App. 697, 702, 476 A.2d 598 (1984) (Torrence I ), aff'd, 196 Conn. 430, 493 A.2d 865 (1985) (Torrence II). If these two questions are answered affirmatively, we will then review the charge to see if there was error and if so, whether reversal is warranted. Torrence I, supra, 1 Conn.App. 702-705, 476 A.2d 598.

"Due process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged; Patterson v. New York, 432 U.S. 197, 204, 97 S.Ct. 2319 [2324], 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, 421 U.S. 684, 698, 95 S.Ct. 1881 [1889], 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068 [1072, 1073], 25 L.Ed.2d 368 (1970); including intent where intent is one of those elements. Mullaney v. Wilbur, supra, 702 ." State v. Kurvin, supra, 186 Conn. 558, 442 A.2d 1327. The trial court must, therefore, instruct the jury so that it clearly understands every element of the crime charged. Accordingly, the defendant's claim that this was not done in this case raises a question of constitutional dimension. Our Supreme Court has "consistently held that colorable claims that jury instructions violated this aspect of due process are appealable even when not raised below. See, e.g., State v. DeMatteo, 186 Conn. 696, 705-706, 443 A.2d 915 (1982); State v. Perez, 181 Conn. 299, 311, 435 A.2d 334 (1980); State v. Arroyo, 180 Conn. 171, 173-74, 429 A.2d 457 (1980)." State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984). Because the defendant's claim that intent was not properly charged is colorable, we will consider it under Evans.

Appellate review under Evans is limited. "Since an Evans claim by definition alleges a fundamental constitutional error, only certain rules are called into play and they are applied in the rarified context of such an allegation. There is, however, no separate set of substantive standards that produces lowered scrutiny of unpreserved claims of fundamental constitutional deprivation." Torrence II, supra, 196 Conn. 435, 493 A.2d 865. We examine the defendant's claim with these criteria in mind.

To convict the defendant of manslaughter under General Statutes § 53a-55(a)(3), the state was required to "prove that the defendant (1) engaged in conduct which creates a risk of death, (2) in so doing, [s]he acted recklessly (3) under circumstances evincing an extreme indifference to human life and (4) that [her] conduct caused the death...." State v. Shine, 193 Conn. 632, 643, 479 A.2d 218 (1984). Additionally, the state had to prove that "the defendant intended to do the proscribed act, i.e., to engage in conduct that creates a grave risk of death to another person, under circumstances evincing extreme indifference to human life...." (Footnote omitted.) Id., 639, 479 A.2d 218. Although the court instructed the jury extensively and properly concerning the first four elements of the crime and three times read the statutory definition of recklessly, ³ it did not explain to the jury that the defendant must have intended to do the proscribed act. ⁴ The failure so to charge was error.

The court's failure to instruct on an essential element of the crime charged, while error, does not automatically require reversal of a subsequent conviction. State v. Kurvin, supra. Rather, "[a]n alleged defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled. State v. Ruiz, 171 Conn. 264, 273-74, 368 A.2d 222 (1976); State v. Rose, 169 Conn. 683, 687-88, 363 A.2d 1077 (1975)." State v. Smith, supra, 194 Conn. 219, 479 A.2d 814. "When, as here, a jury instruction is challenged as not merely erroneous but as constitutionally deficient in a fundamental respect, the challenge can succeed only if it is reasonably possible that the jury was misled by the instruction into misunderstanding an issue that has fundamental constitutional significance. See State v. Smith, 194 Conn. 213, 219-20, 479 A.2d 814 (1984); State v. Kurvin, supra [186 Conn.], 558, 565, 569 ." Torrence II, supra, 196 Conn. 435-36, 493 A.2d 865. When making this determination, it must be remembered that "[a] court's charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial." State v. Kurvin, supra, 558, 442 A.2d 1327.

At trial, the defendant presented only one factual issue relevant to this analysis. She claimed that she did not intend to make the physical movement which resulted in her sister's death. In support of this version of the stabbing, the defendant testified that her brother James grabbed her arm and tried to prevent her from touching Pamela. The defendant further testified that she struggled to loosen her brother's grip and, as she pulled free, the knife "jumped," causing the fatal wound.

Under General Statutes § 53a-55(a)(3), a person is guilty of manslaughter if she "recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." Given the defendant's claim of accident, the court's failure to charge the jury on general intent could possibly have misled the jury only if we view the conduct which created the grave risk of death as limited to the act of stabbing. This is not the case. All of the defendant's actions--picking up the knife, grabbing...