State v. Anderson, 10039

• Decision Date: 22 October 1992
• Docket Number: No. 10039,10039
• Citation: 28 Conn.App. 833,614 A.2d 438
• Parties: STATE of Connecticut v. Charles ANDERSON.
• Court: Connecticut Court of Appeals

Page 438

614 A.2d 438

28 Conn.App. 833

STATE of Connecticut v. Charles ANDERSON.

No. 10039.

Appellate Court of Connecticut.

Argued May 11, 1992.

Decided Sept. 1, 1992.

Certification Granted Oct. 22, 1992.

Lavery, J., dissented and filed opinion.

Lauren Weisfeld, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Paul J. Ferencek, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Warren Maxwell, Senior Asst. State's Atty., for appellee (state).

Before DALY, LAVERY and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of one count of the crime of assault in the first degree in violation of General Statutes § 53a-59(a)(1), and two counts of the crime of carrying a pistol without a permit in violation of General Statutes § 29-35. ¹ The defendant claims that the trial court (1) improperly instructed the jury regarding self-defense, and (2) made a series of improper interrelated rulings that had the cumulative effect of depriving the defendant of his right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the early morning hours of March 21, 1990, the victim was involved in a craps game with the defendant and another individual, "Cat" Bunkley, at the defendant's apartment in Hartford. The game ended at approximately 2 a.m. when the victim had won approximately $1100 from the defendant and Bunkley. At that time, there was a discussion between the defendant and the victim about the return of some money to the defendant, which he claimed the victim owed to him for a loan made approximately one year earlier. The victim refused to give the defendant any money, but stated that he would "see what [he could] do." The victim then decided to return to his apartment, which was directly across the street, to count his winnings.

On his way out of the apartment building, the victim stopped by the apartment of some friends, William and Kenneth Stewart, and told them about his winnings and asked them to escort him across the street to his apartment. The three left the Stewarts' apartment, and were accompanied across the street by the defendant and Bunkley. While they walked, one of the Stewarts heard the defendant ask the victim, "Do you have anything for me?"

When the group reached the victim's apartment, the victim and the Stewarts entered through a door that opened into the kitchen. They closed the door behind them, leaving the defendant and Bunkley in the hall. The victim began counting his cash when the defendant knocked on the door. When the victim opened the door, the defendant asked for money from the victim, who advised the defendant to wait until he finished counting his winnings and then closed the door. The defendant then knocked on the door again. The victim opened the door a second time and told the defendant to wait, and when the victim tried to close the door again, the defendant stuck his foot in the threshold to prevent the victim from closing it.

At this time, the victim moved toward one side of the kitchen to light a cigarette over the stove, which was near the doorway in which the defendant was then standing. As he did so, the defendant pulled out a pistol and shot the victim in the right shoulder. The defendant then left the scene.

The defendant first claims that the trial court improperly instructed the jury on the law applicable to his self-defense claim. Specifically, he claims that in instructing the jury on self-defense pursuant to General Statutes § 53a-19, ² the trial court improperly stated that the "reasonable force" to be evaluated by the jury "is that force which an average person of ordinary intelligence in like circumstances would judge to be necessary to prevent injury and no more." ³ (Emphasis added.) In other words, this portion of the charge given by the trial court instructed the jury to evaluate the defendant's use of force strictly on an objective basis. The defendant argues that this definition of reasonable force impermissibly replaced the subjective-objective standard required by § 53a-19 and, therefore, deprived the defendant of his constitutional right to have his jury properly instructed.

The defendant has not properly preserved this claim for appellate review. He seeks review, however, under the well established principles for reviewability of unpreserved constitutional claims as set forth in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), ⁴ because his fundamental right to present a defense includes a proper instruction on the elements of self-defense. State v. Gilchrist, 24 Conn.App. 624, 632-33, 591 A.2d 131, cert. denied, 219 Conn. 905, 593 A.2d 131 (1991). On the basis of State v. Williams, 25 Conn.App. 456, 462, 595 A.2d 895, cert. denied, 220 Conn. 916, 597 A.2d 339 (1991), we conclude that the defendant cannot prevail on this claim because the court's instruction, although containing an incorrect statement of the law, was harmless beyond a reasonable doubt.

In Williams, the defendant challenged the following language of the trial court's instruction on self-defense: " '[R]easonable force' ... 'is the amount of force that would be used by an average person of ordinary intelligence, acting under the same circumstances.' " Id., 25 Conn.App. at 463, 595 A.2d 895. As the state concedes in its brief, an instruction on self-defense that fails to instruct the jury to evaluate the defendant's use of force on a subjective-objective basis, such as the challenged instruction here and that given in Williams, is an incorrect statement of the law under § 53a-19. ⁵ Section 53a-19 requires that the jury evaluate, among other things, the perception of the danger that the defendant faced and his use of force in response to that perceived danger. "Where, as here, the improper instruction is of constitutional dimension, the test is whether it is reasonably possible that the jury was misled." Id., at 465, 595 A.2d 895.

As Williams points out, the defendant's perception of the danger he faced, and his use of force in response to that perceived danger, although two distinct legal concepts for purposes of analyzing the trial court's instructions, "are so inextricably intertwined that they cannot be analyzed in a vacuum, one separated from the other. The degree of force used by a defendant must necessarily be evaluated in relationship to something. That something is the danger that was perceived by the defendant." (Emphasis in original.) Id. The Williams court then considered the instructions given by the trial court regarding the perception of danger, ⁶ and determined that that part of the instruction "enabled the jury properly to carry out its duty to examine the evidence both subjectively and objectively, while keeping in mind that the defendant's conduct must 'be judged ultimately against that of a reasonably prudent person.' " Id., at 466, 595 A.2d 895. The court concluded, therefore, that the improper instruction was harmless beyond a reasonable doubt.

As previously stated, the challenged portion of the jury instruction here is nearly identical to that challenged in Williams. The trial court's instruction regarding the defendant's perception of danger is also nearly identical to that given in Williams. ⁷ Because we see no meaningful distinction between the facts of Williams and the facts of the present case, we conclude that it is not reasonably possible that the jury was misled and that the improper instruction was harmless beyond a reasonable doubt.

The defendant suggests that the instruction given in his case is distinguishable from that given in Williams because he claims that the trial court also improperly instructed the jury regarding his duty to retreat. Section 53a-19(b) provides that "a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating...." The trial court, however, instructed the jury that the defendant would not be justified in using force if he could have retreated "with safety." The defendant claims that the trial court's failure to include the word "complete" in this portion of its charge was improper, and thus, when combined with the other improper portion of the instruction, it is reasonably possible that the jury was misled. We disagree. Although the trial court's failure to include the express language of the statute in its charge to the jury may be improper; State v. Holloway, 209 Conn. 636, 651, 553 A.2d 166, cert. denied, 490 U.S. 1071, 109 S.Ct. 2078, 104 L.Ed.2d 643 (1989); State v. Cobb, 199 Conn. 322, 324-25, 507 A.2d 457 (1986); State v. Carpenter, 19 Conn.App. 48, 56-57, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989); it did not alter the substantive meaning of the statute in any way. Webster's Third New International Dictionary defines safety as "freedom from exposure to danger." The term safety, therefore, necessarily entails complete safety and thus the absence of the word "complete" from the trial court's instructions was harmless beyond a reasonable doubt.

The defendant's second claim is that a combination of improper interrelated rulings had the cumulative effect of depriving the defendant of a fair trial. He claims that the trial court improperly (1) refused to admit into evidence the defendant's entire written police statement, (2) conducted an offer of proof on the defendant's self-defense claim, (3) failed to direct a mistrial in the light of prosecutorial misconduct, (4) permitted the state to impeach the defendant with a prior inconsistent statement made during the offer of proof, (5) failed to admit into evidence his written police statement after the state impeached him, and (6) excluded surrebuttal...