State v. Falcon

• Decision Date: 30 January 1992
• Docket Number: No. 9554,9554
• Citation: 600 A.2d 1364,26 Conn.App. 259
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Jose A. FALCON.

Page 1364

600 A.2d 1364

26 Conn.App. 259

STATE of Connecticut v. Jose A. FALCON.

No. 9554.

Appellate Court of Connecticut.

Argued Sept. 19, 1991.

Decided Dec. 17, 1991.

Certification Denied Jan. 30, 1992.

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

Jack W. Fischer, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Warren Maxwell, Sr. State's Atty., for appellee (state).

Before DUPONT, C.J., and NORCOTT and HEIMAN, JJ.

DUPONT, Chief Judge.

The defendant was charged in a two count information with the crimes of murder, in violation of General Statutes § 53a-54a, ¹ and assault in the third degree, in violation of General Statutes § 53a-61(a)(1). After a jury trial, the defendant was convicted on the first count of what the court considered a lesser included offense of murder, namely, manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a. ² The jury also returned a verdict of guilty on the second count. The defendant claims that the trial court improperly instructed the jury that it could consider the crime of manslaughter in the first degree with a firearm as a lesser included offense of the crime of murder, as to the meaning of proof beyond a reasonable doubt, and on circumstantial evidence by failing to define the state's and the defendant's respective burdens correctly. The defendant also claims that the trial court improperly hindered the defendant's self-defense claim by prohibiting the defendant from examining and rehabilitating his witnesses. We reverse the judgment in part, and remand the case to the trial court.

The jury could reasonably have found certain facts. On February 13, 1989, the defendant returned home from work in the afternoon. Early in the evening, his wife left to run some errands. At about 9 o'clock that evening, the defendant's wife telephoned him, and he testified that she "sounded a little drunk."

At about 11:30 that night, the defendant put on the jacket that he had worn to work that day and went out to look for his wife. He noticed her car parked outside a cafe, and when he entered the bar he saw his wife in the back room talking to three men. An argument ensued between the defendant and his wife because she refused to leave. Eventually, she agreed to leave with him and went to get her jacket and pocketbook.

As the defendant tried to leave the bar, the victim, who was an off duty bouncer at the bar, approached the defendant from behind to tell him to leave. The victim grabbed the defendant's shoulder and a struggle ensued. The defendant put his right hand into his jacket pocket, pulled out a gun, put it over his right shoulder and fired. The victim died from a single gunshot wound to his chest. The defendant left the bar, threw the gun into a river and then turned himself in to the police.

At trial, the defendant relied exclusively on a claim of self-defense. The defendant testified on his own behalf, stating that he carried the weapon because he and his family had been the victims of violence and continuing threats. He testified that he acted in self-defense when he reached for his gun at the time of the shooting because he believed his life was in danger, and that he did not intend to kill the victim.

I

The defendant's first claim is that the trial judge improperly instructed the jury that it could consider the crime of manslaughter in the first degree with a firearm, a violation of General Statutes § 53a-55a, as a lesser included offense of murder, a violation of General Statutes § 53a-54a. The information charged that the defendant, "with intent to cause the death of another person, caused the death of such person, in violation of section 53a-54a of the General Statutes." The defendant claims that, based on the charging document as worded, the instruction on manslaughter in the first degree with a firearm violated his statutory and constitutional rights to fair notice of the crimes charged against him. This claim was not properly preserved by the defendant at trial, but we conclude that we must notice such an instruction as plain error. Practice Book § 4185.

Both the state and the defendant requested a charge on the lesser included offense of manslaughter in the first degree. Neither requested a charge on manslaughter in the first degree with a firearm, which the court gave sua sponte. The defendant took no exception, however, to the charge as given.

" 'Although generally plain error review is limited to instances involving confidence in the fairness and integrity of the adjudicative process; Smith v. Czercel, 12 Conn.App. 558, 563, 533 A.2d 223 (1987); the doctrine essentially invokes the discretion of the court. Finley v. Aetna Life & Casualty Co., [202 Conn. 190, 196, 520 A.2d 208 (1987) ]. One standard for this appellate discretion is whether the issue is of importance to the development of the law of the state, is vital to the proper resolution of the case, and was sufficiently presented to the trial court initially ... so that appellate consideration of it does not amount to ambuscade of the trial court. Finley v. Aetna Life & Casualty Co., 5 Conn.App 394, 402-403, 499 A.2d 64 (1985), rev'd on other grounds, 202 Conn. 190, 520 A.2d 208 (1987). It is this latter branch of the plain error doctrine which we invoke here.' Daley v. Gaitor, 16 Conn.App. 379, 383, 547 A.2d 1375 (1988)." State v. Rogers, 18 Conn.App. 104, 110-11, 556 A.2d 1030 (1989).

In this case, the necessary preconditions for a plain error review as outlined in Rodgers have been met. The question of whether one crime is a lesser included offense of another is important to the development of the law because of its due process overtones. The question is also vital to the proper resolution of the case. Finally, the question was sufficiently presented to the trial court initially. In fact, it was the state's attorney who indicated to the trial judge that the charge was incorrect. Therefore, our consideration of it now does not amount to ambuscade of the trial court.

"Nothing is more elementary in criminal law than that an accused is required to defend only against the charge[s] alleged." State v. Belton, 190 Conn. 496, 501, 461 A.2d 973 (1983). The information serves the very important function of informing the defendant of the nature and cause of the accusation as required by our federal and state constitutions. U.S. Const., amend. VI; Conn. Const., art. I, § 8; State v. Belton, supra. Where one or more offenses are lesser than and included in the crime charged in the information, notice of the crime charged includes notice of all lesser included offenses. State v. Castro, 196 Conn. 421, 429, 493 A.2d 223 (1985).

There are tests comparing one crime with another to determine if one is a lesser included offense of the other or if the two are separate crimes. See Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980). "The test for determining whether one crime is a lesser included offense of another crime is whether it is possible to commit the greater offense in the manner described in the information or bill of particulars without having first committed the lesser." State v. Hodge, 201 Conn. 379, 385, 517 A.2d 621 (1986); State v. Whistnant, supra, 179 Conn. at 584, 427 A.2d 414. The lesser included offense doctrine implicates notice requirements of due process. State v. Hudson, 14 Conn.App. 472, 476-77, 541 A.2d 539 (1988).

On the other hand, "[u]nder the Blockburger test, 'a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other.' " State v. Tweedy, 219 Conn. 489, 495, 594 A.2d 906 (1991). The separate offense doctrine implicates double jeopardy concerns. Id.

In this case, we must determine whether it was possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. State v. Hodge, supra. Proof of a lesser included offense must not require proof of any element that is not needed to commit the greater offense. State v. Castro, supra, 196 Conn. at 428, 493 A.2d 223; State v. Gonzalez, 14 Conn.App. 216, 221, 541 A.2d 115 (1988), aff'd, 210 Conn. 446, 556 A.2d 137 (1988).

The state conceded at oral argument that manslaughter in the first degree with a firearm, as defined in General Statutes § 53a-55a, is not a lesser included offense of murder, as defined in General Statutes § 53a-54a and as charged in the state's information in this case. We are not bound, however, by a concession of the parties. State v. Putnoki, 200 Conn. 208, 219 n. 6, 510 A.2d 1329 (1986). This is particularly true in this case because there are at least five other cases in which it has been stated in passing, or decided inferentially, that the former is a lesser included offense of the latter. See, e.g., State v. Shipman, 195 Conn. 160, 486 A.2d 1130 (1985); State v. Marino, 190 Conn. 639, 462 A.2d 1021 (1983); State v. Toczko, 23 Conn.App. 502, 582 A.2d 769 (1990); State v. Bahamonde, 21 Conn.App. 801, 570 A.2d 245 (1990); State v. Rodriguez, 10 Conn.App. 357, 522 A.2d 1250 (1987).

For purposes of lesser included offense analysis, the facts in this case are critically distinguishable from the facts in State v. Shipman, supra, and State v. Marino, supra. In both Shipman and Marino, the defendant was charged with murder and the charging documents expressly stated that such crime was perpetrated by the use of a firearm. Since, for purposes of a lesser included offense analysis, both the relevant statutes and the charging documents must be examined; State v. John, 210 Conn. 652, 695, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989); manslaughter in the first degree with a...