State v. Havican

• Citation: 569 A.2d 1089,213 Conn. 593
• Decision Date: 30 January 1990
• Docket Number: No. 13540,13540
• Parties: STATE of Connecticut v. Raymond HAVICAN.
• Court: Connecticut Supreme Court

Page 1089

569 A.2d 1089

213 Conn. 593

STATE of Connecticut v. Raymond HAVICAN.

No. 13540.

Supreme Court of Connecticut.

Argued Oct. 31, 1989.

Decided Jan. 30, 1990.

Daniel F. Egan, Public Defender, for appellant (defendant).

Mark H. Lesser, Deputy Asst. State's Atty., with whom was John Connelly, State's Atty., for appellee (State).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

CALLAHAN, Associate Justice.

The sole issue in this appeal is whether the trial court erred in not instructing the jury that the defendant could use deadly physical force if reasonably necessary to repel a forcible sexual assault. The defendant, Raymond Havican, was convicted by a jury of murder in violation of General Statutes § 53a-54a ¹ and sentenced to life imprisonment. He appeals from the judgment rendered on the verdict. We find error.

On appeal, the defendant claims that the trial court erred when, in disregard of his request, it instructed the jury on self-defense and defined the term "great bodily harm" only in terms of "serious physical injury" and thereby excluded self-defense based solely upon the threat of homosexual rape as a basis for finding the defendant not guilty. "When we are reviewing a trial court's failure to charge as requested, 'we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.' State v. Anonymous (1977-9), 34 Conn.Sup. 612, 616, 380 A.2d 7 (1977); see State v. Cassino, 188 Conn. 237, 239, 449 A.2d 154 (1982); State v. Arroyo, 181 Conn. 426, 430, 435 A.2d 967 (1980)." State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986).

The defendant testified that on the evening of May 12, 1987, he was hitchhiking south on Route 8 in Waterbury when he was picked up by the victim, Harold Sanders. The defendant told the victim that he wanted a ride to the Union City exit on Route 8. Instead of following the defendant's instructions, however, the victim drove past the Union City exit and got off at the next exit. He then traveled up Maple Street in Naugatuck and locked the doors of the car. As he was driving, the victim grabbed the defendant in the groin area and private parts. The defendant pushed the victim away and demanded to be let out of the car.

Instead, the victim continued to make numerous aggressive advances toward the defendant. At this point, the defendant produced a gun and warned the victim to stop. The victim stopped momentarily, but instead of driving the defendant to his original destination, abruptly turned down a street in a remote area, pulled into a dirt logging road and stopped. The defendant was terrified and tried to get out of the car but was unable to do so because its doors were still locked. The victim then lunged at the defendant, pinning his shoulders against the car door. At that point the defendant fired one shot from his revolver. The victim was momentarily stunned by the shot but continued to come towards the defendant. The defendant then hit the victim with the gun numerous times and fired his remaining five shots. Still terrified, he then managed to unlock the car door, extricate himself from the automobile's interior and run.

After fleeing "a couple of hundred yards down the road," the defendant decided to return to the car to hide the body. He did so by removing the victim's body from the car and covering it with brush. Thereafter, the defendant drove the victim's car to Florida. When the victim's body was found, his penis was exposed. No jewelry or money had been taken from the decedent.

At trial, the court based its instructions to the jury, concerning the use of deadly force in self-defense, on General Statutes § 53a-19. ² The trial court stated that the defendant could use deadly physical force if he reasonably believed that the victim was (1) using or about to use deadly physical force or (2) inflicting or about to inflict great bodily harm. The trial court then proceeded to define great bodily harm by reciting the definition of serious physical injury set forth in General Statutes § 53a-3(4). It instructed the jury that: "Great bodily harm is equivalent to serious physical injury, which means physical injury which creates a substantial risk of death or which creates serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ." See General Statutes § 53a-3(4). The defendant duly objected to the definition of "great bodily harm" included in the jury charge. The defendant requested the court either: (1) to leave the term "great bodily harm" undefined or (2) "to define great bodily harm in connection with sexual assault in the first degree."

"If the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction. [State v. Rosado, 178 Conn. 704, 707-708, 425 A.2d 108 (1979) ]. '[A] defendant is "entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible...." United States v. Platt, 435 F.2d 789, 792 (2d Cir.1970), quoting United States v. O'Connor, 237 F.2d 466, 474 n. 8 (2d Cir.1956).' United States v. Alfonso-Perez, 535 F.2d 1362, 1365 (2d Cir.1976). 'A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920 [1923,] 18 L.Ed.2d 1019 (1967)....' State v. Miller, 186 Conn. 654, 660, 443 A.2d 906 (1982)." State v. Fuller, supra, 199 Conn. at 278, 506 A.2d 556. When the legislature has created a legally recognized defense, the defendant is entitled to a proper jury instruction on the elements of that defense so that the jury may ascertain whether the state has sustained its burden of disproving the defense beyond a reasonable doubt. Id., State v. Miller, supra, 186 Conn. at 660-61, 443 A.2d 906.

We therefore must first ascertain whether, under our law, a person may use deadly physical force when he reasonably believes that he is about to be forcibly sexually assaulted. Our self-defense statute, General Statutes § 53a-19, sets forth the circumstances in which a person is justified in using deadly physical force. In discussing the codification of the law of self-defense in § 53a-19, we have said that "[t]he statutes which enumerate the situations where the use of force is justified 'attempt to restate the common law. They should be read in the light of their common law background, and the fact that an individual section does not fully state the relevant common law rule, with all its possible applications, exceptions or implications, should not prevent a court from reading it as incorporating the full body of common law rules relevant thereto.' Commission to Revise the Criminal Statutes, Connecticut Penal Code Comments 5-6 (1972)." State v. Shaw, 185 Conn. 372, 379, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S.Ct. 1027, 71 L.Ed.2d 312 (1982); State v. Corchado, 188 Conn. 653, 661-62, 453 A.2d 427 (1982). Similarly, our rules of statutory construction tell us that " '[n]o statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.' Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951), quoting Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L.Ed. 892 (1879)." Yale University School of Medicine v. Collier, 206 Conn. 31, 37, 536 A.2d 588 (1988).

At common law, a person could justifiably use deadly force in self-defense of sodomy and rape. ³ See 40 C.J.S., Homicide § 101. We have stated that, "[t]he class of crimes in prevention of which a man may, if necessary, exercise his natural right to repel force by force to the taking of the life of the aggressor, are felonies which are committed by violence and surprise; such as murder, robbery, burglary, arson, breaking a house in the day time with intent to rob, sodomy and rape. Blackstone says: 'Such homicide as is committed for the prevention of any forcible and atrocious crime is justifiable by the law of nature; and also by the law of England, as it stood as early as the time of Bracton....' " State v. Moore, 31 Conn. 479, 483 (1863). Thus General Statutes § 53a-19 codified the common law rule that a person can justifiably use deadly force in self-defense of sodomy and rape.

The state agrees with this proposition but nevertheless argues that the trial court's charge need not have specifically mentioned that the defendant was in fear of being forcibly sexually assaulted. In other words, the state claims that a jury charge is adequate as long as it mentions that a defendant must be in fear of great bodily harm or death. The state further claims that the trial judge's definition of great bodily harm solely in terms of serious physical injury did not exclude homosexual rape as one of the circumstances that would give rise to a reasonable belief that the aggressor was about to inflict great bodily harm. We disagree.

Neither General Statutes § 53a-19 nor Connecticut case law defines "great bodily harm." We therefore must first address whether "great bodily harm" is equivalent to "serious physical injury." In doing so, we recognize that " 'in construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous. State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978); Catino v. Board of Education, 174 Conn. 414, 418, 389 A.2d 754 (1978); Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231-32, 477 A.2d 988 (1984)." Hayes v. Smith, 194 Conn. 52, 58, 480 A.2d 425 (1984).

General Statutes § 53a-19 allows an actor to use deadly physical force only when "the actor...