State v. Ash, 14929

• Decision Date: 20 December 1994
• Docket Number: No. 14929,14929
• Citation: 231 Conn. 484,651 A.2d 247
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Eric ASH.

Page 247

651 A.2d 247

231 Conn. 484

STATE of Connecticut v. Eric ASH.

No. 14929.

Supreme Court of Connecticut.

Argued Oct. 27, 1994.

Decided Dec. 20, 1994.

Lauren Weisfeld, Asst. Public Defender, with whom, on the brief, was Ramona S. Carlow, Special Public Defender, for appellant (defendant).

John A. East III, Deputy Asst. State's Atty., with whom, on the brief, were James E. Thomas, State's Atty., and Herbert E. Carlson, Jr., Sr. Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and KATZ, JJ.

KATZ, Associate Justice.

The issue before the court is whether in the criminal trial of the defendant, Eric Ash, the trial court's misstatement of law on the duty to retreat under the self-defense statute, General Statutes § 53a-19, ¹ was harmless beyond a reasonable doubt. The defendant was convicted, after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1). ² The defendant appealed that conviction to the Appellate Court, claiming that the trial court's jury instructions had contained misstatements about the duty to retreat and that these misstatements, in light of the charge as a whole, made it reasonably possible that the jury was misled. State v. Ash, 33 Conn.App. 782, 794, 638 A.2d 633 (1994). The Appellate Court agreed with the defendant's contention that the trial court's instructions had contained misstatements about the duty to retreat, but it agreed with the state that the error was harmless and affirmed the judgment of conviction. Id. We granted certification to appeal from the judgment of the Appellate Court, solely to review whether the Appellate Court properly had concluded that the trial court's misstatements were harmless beyond a reasonable doubt. State v. Ash, 229 Conn. 916, 642 A.2d 1211 (1994). ³ We reverse the judgment of the Appellate Court.

The Appellate Court determined that the jury reasonably could have found the following facts. "On April 3, 1991, at approximately 8:30 p.m., Vincent Ellison was stabbed to death at the doorway to his apartment. The victim's apartment is located on the first floor of a dilapidated, brick building at 500 Ann Street in Hartford. The front entrance to the building opens into a large hallway on the first floor and there are two apartments located on the left side of the hallway that are visible from the front entrance. The victim's apartment was the first one on the left and James Osborne's was the second. Beyond Osborne's apartment is a short corridor leading to another apartment, not visible from the front entrance. The victim's cousin, Oscar Steve Anglin, lived in the third apartment.

"The defendant frequently visited the victim at his apartment. On April 3, 1991, the victim, the defendant and the victim's cousin, Michael Antoine Nixon, were present in the victim's apartment. The three men spent the afternoon drinking alcohol and taking drugs. At about 5:30 p.m., the defendant left the apartment to 'hustle' some money in order to obtain more drugs. He returned shortly thereafter with two sweaters he had shoplifted from a local store. At about 6 p.m., the victim sent Nixon out with directions to sell the sweaters and to purchase more drugs with the proceeds.

"When Nixon failed to return within the hour, the defendant became concerned about Nixon's absence and expressed this concern to the victim several times. The victim became angry with the defendant for mistrusting his cousin. He threatened to harm the defendant if he did not leave the apartment. The defendant then ran out of the victim's apartment into the hallway and knocked on the door to Osborne's apartment. He did not wait for Osborne to answer because he thought the victim was pursuing him with a knife. He continued down the hallway and knocked on Anglin's door. When Anglin opened the door he saw that the defendant was carrying a large butcher knife. ⁴ The defendant entered Anglin's apartment and pleaded with him to calm the enraged victim. Anglin then stepped into the hallway to speak with the victim, who was carrying a broomstick. Anglin had shut the door behind him and the defendant locked the door from the inside. After speaking with Anglin for approximately seven to eight minutes, the victim turned and went down the hallway in the direction of his apartment. The defendant let Anglin return to his apartment and the defendant then decided to leave Anglin's apartment and to retrieve his shoes and clothes from the victim's apartment before he left the building.

"Osborne, who had overheard the voices of the defendant, the victim and Anglin coming from the direction of Anglin's apartment, opened his apartment door to see what was going on in the hallway. Osborne saw the victim first, standing in front of Osborne's apartment door, holding a broomstick and shouting loudly about 'kick[ing the defendant's] ass.' Osborne then saw the defendant walking down the hallway from the direction of Anglin's apartment with a knife in his hand. The defendant came face-to-face with the victim and stated that he was tired of his threats and that he was not going to take it any longer. At that point, the victim assumed a karate stance holding the stick with both hands and said to the defendant, 'Come on, bitch, come on.'

"The victim then swung the stick at the defendant, hitting him in the shoulder and the defendant thrust the knife at the victim. The men fought back and forth from the doorway of Osborne's apartment toward the front entrance of the building and back to the doorway of the victim's apartment. At some point during the fight, the knife and stick fell to the hallway floor.

"After several minutes of fistfighting, the victim lost his footing and fell backward onto the floor and across his apartment's threshold. The victim was lying on his back with his legs extended into the hallway and his upper torso inside his apartment. The defendant ended up on top of the victim, straddling him, while the victim struggled to push or kick the defendant off of him. In the midst of the struggle, the defendant picked up the knife from the hall floor and fatally stabbed the victim. The defendant then went into Osborne's apartment and asked for a pair of shoes. When Osborne told the defendant that he could not believe he had stabbed the victim, the defendant responded, 'I did it, and I'll do it again.' The defendant then left Osborne's apartment with the knife and a pair of Osborne's shoes, went next door to the victim's apartment to retrieve his jacket, and fled the building.

"When arrested, the defendant told the police, 'I had to stab him; I had to stab him.' At trial, however, the defendant testified that he did not recollect actually stabbing the victim although he did recall thrashing at the victim with a knife in his hand. He claimed to have been scared and confused and to have acted in self-defense." State v. Ash, supra, 33 Conn.App. at 784-87, 638 A.2d 633.

The defendant provided a somewhat different and more detailed version of the events immediately surrounding the stabbing. On the basis of his testimony, the jury could reasonably have found these following facts. The defendant did not have a knife when he left Anglin's apartment. It was the victim who, after the defendant disarmed him of his stick, first reached into his jeans and pulled out a knife. The victim then came at the defendant with the knife but slipped and dropped it. The defendant dove on the victim and started to hit him with his bare hands. During the continued melee, the victim tried to retrieve the knife. The defendant struggled to get the knife out of the victim's reach and managed to gain possession of it. As the defendant tried to get up and throw the knife out of the way, the victim continued to kick and hit the defendant in the face. With the knife in his hand, the defendant tried to block the victim's assaults. It was during that part of the struggle that the defendant stabbed the victim.

In instructing the jury regarding self-defense and the duty to retreat, the trial court stated, inter alia, "[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 by retreating. These are statements taken directly from the statute for your guidance.... As to retreating with complete safety, you must consider what was reasonable for the defendant to perceive was available as retreat or if none was available without the use of physical force, what degree of physical force was reasonably necessary to make one available. Now, in this connection, you can realize what you are doing is attempting to stand in the shoes of the defendant, as you would perceive a reasonable person to view the same situation, under the same conditions.

"So, as to retreat, you may consider the evidence that when the argument was escalating in [the victim's] apartment and that the defendant was asked to leave, whether or not he could perceive that this was an act of wisdom to leave, taking his shoes and jacket, and leaving. Or when he was in Mr. Anglin's room and there was the opportunity of refuge--which apparently, after he was able to lock the door and before Mr. Anglin left the room to talk to [the victim], [the victim] had apparently not attempted to break into the room and even when Mr. Anglin returned, there was still the opportunity of remaining in the room.

"You may also consider the fact that in the room there was a telephone, so that there was the opportunity for looking for police assistance. When he did go out into the hall, was he in fact looking for an opportunity of leaving the building. Or as I recall his testimony, when they were fighting for some three minutes, after he had fallen on the knife, was there an opportunity of him enlisting Mr. Osborne's assistance to take custody of the knife." The jury thereafter convicted the defendant of...