State v. Hawkins, 7207

• Decision Date: 12 October 1989
• Docket Number: No. 7207,7207
• Citation: 19 Conn.App. 609,563 A.2d 745
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Anthony HAWKINS.

Page 745

563 A.2d 745

19 Conn.App. 609

STATE of Connecticut v. Anthony HAWKINS.

No. 7207.

Appellate Court of Connecticut.

Argued June 15, 1989.

Decided Sept. 5, 1989.

Petition for Certification Denied Oct. 12, 1989.

Christopher M. Cosgrove, Asst. Public Defender, for the appellant (defendant).

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

Before BORDEN, DALY and NORCOTT, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree, in violation of General Statutes § 53a-55(a)(1). ¹ The defendant claims that the trial court erred (1) in charging the jury that under General Statutes § 53a-19(c)(1) ² the provocation does not need to be intentional, and (2) in charging the jury that § 53a-19(c)(1) applied to this case, where the alleged provocation was committed through an assault on a third party. We find error.

The jury could reasonably have found the following facts. On September 28, 1987, the defendant's younger brother, Andre Portis, was involved in a verbal altercation with a group of six teenagers. In this group was Kenneth Mapp, the victim's younger brother. At some point during the exchange, Portis produced a small handgun, pointed it at Mapp, and fired the weapon. Mapp was not struck by the shot. At that point, the parties dispersed. Portis returned to his house, while Mapp and two of his friends ran a few blocks away and obtained a sawed-off shotgun. Mapp loaded the gun and proceeded back toward the Portis house with his friends. En route, they were joined by the victim, Delbert Mapp. The group then proceeded to the front of the Portis house. At this time, Portis and the defendant were on or near their first floor porch.

The Mapp contingent called out for a one-to-one fight between Portis and Kenneth Mapp. The defendant also supported a one-to-one fight between Kenneth Mapp and Portis. After noticing that Delbert Mapp was holding the sawed-off shotgun, the defendant produced a small handgun, which he held while advocating a fair fight.

A fistfight between Portis and Kenneth Mapp then ensued. Jonathan Jones, a member of the Mapp contingent, testified that, just before the fight started, he had taken the sawed-off shotgun away from the scene. As the fight progressed and it became apparent that Portis was losing, the defendant struck Kenneth Mapp on the back of the neck with the butt of the handgun. Thereupon, Delbert Mapp rushed at the defendant. The defendant turned toward Delbert Mapp and fired two shots, one of them striking him in the chest and killing him. The defendant testified that he had heard someone in the crowd call out "shoot him" and that he looked up to see the victim rushing at him. He testified that he did not notice whether the victim was armed but stated that the victim was carrying the shotgun the last time he had looked at him. The defendant further testified that he was trying to "stop" the victim, not kill him.

The defendant was arrested and charged with the crime of murder, in violation of General Statutes § 53a-54a. ³ Before the case was submitted to the jury, the defendant submitted to the trial court a written request that it charge, inter alia, on the lesser included offense of manslaughter in the first degree under General Statutes § 53a-55(a)(1), and on the elements of self-defense as provided by General Statutes § 53a-19. The defendant's request to charge included most of § 53a-19, including all of subsection (c), which provides in pertinent part: "Notwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person...." See footnote 2, supra.

On appeal, the defendant's assignments of error do not involve the trial court's initial instructions to the jury, ⁴ but involve the court's response to the jury's subsequent requests for clarification on the elements of self-defense. During its deliberations, the jury submitted five requests for further clarification of the trial court's instructions, three of which were directed toward the elements of self-defense. The final request was as follows:

"One of the jurors thinks that Anthony's act of hitting Kenneth on the back of the neck was not intentional provocation to get Del to rush so Anthony could shoot him--therefore his claim of self defense is legitimate. Other jurors feel that provocation does not have to be an intentional act done to get Del to 'rush.' They feel any 'provocation' is grounds to dismiss the defense of self defense. Please clarify." (Emphasis in original.)

In response, the trial court had the jury listen to the audio tape of its original self-defense instructions, and then read the pertinent subsection of § 53a-19(a)(1) verbatim. The trial court told the jury:

"You will note that in that quotation it starts out with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person. The word intentional is not in the statute before the word provoke. He provokes the use of physical force against such other person. So that should answer your question, ladies and gentlemen. That's the way the statute is worded.

"I'll read it again. [The court read the statute to the jury.] ... The word intentional is--intent is only in the beginning, with intent to cause physical injury. There is not intent provided in the statute under-- before the word provokes. He provokes the use of physical force. That should answer your question, I hope."

The defendant took exception to that instruction on two grounds. First, the defendant claimed that, contrary to the court's instructions, the phrase "with intent to cause physical injury or death to another person" did modify the word "provokes." Second, the defendant claimed that subsection (c) applied to only two party situations, and did not contemplate a situation where the act of provocation was directed toward a third party.

A trial court's charge to the jury must be "correct in the law, adapted to the issues and sufficient to guide the jury." State v. Shaw, 185 Conn. 372, 383, 441 A.2d 561 (1981), quoting State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). Whenever a claim of self-defense is raised, the defendant has a constitutional right to proper jury instructions on the elements of self-defense. State v. Corchado, 188 Conn. 653, 660, 453 A.2d 427 (1982). Our standard of review of a claim regarding improper instructions on the law of self-defense is "whether it is reasonably possible that the jury were misled." Id., State v. DeJesus, 194 Conn. 376, 388, 481 A.2d 1277 (1984). We conclude that under the trial court's instructions it is reasonably possible that the jury was misled.

We note initially that both of the defendant's claims of error regarding the trial court's instructions involve the statute's utilization of the word "provokes." Both of the defendant's claims, therefore, are to a large extent dependent upon each other. Thus, our determination as to one issue necessarily controls our resolution of the other.

The defendant's first claim is that the trial court erred in charging the jury that under § 53a-19(c)(1) the provocation need not be intentional. The defendant argues that the phrase "with intent to cause physical injury or death to another person" modifies the words "he provokes the use of physical force by such other person." We agree with the defendant.

"To provoke is to excite, to stimulate, to arouse." State v. Warner, 34 Conn. 276, 279 (1867). While it appears that "provokes" is imbued with its own aspect of intent, § 53a-19(c)(1) by its very words adds another measure of intent. General Statutes § 53a-5 ⁵ provides that when a term such as "with intent" is used in a statute, "it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears." Thus, the phrase "with intent to cause physical injury or death to another person" must be presumed to apply to the word "provokes," since no intent to limit such an application appears. Properly read, the phrase "with intent to cause physical injury or death to another person" describes the mental state that the provoker must have.

We note also that our Supreme Court's language in State v. Corchado, supra, strongly buttresses our determination that under § 53a-19(c)(1) the defendant must do more than just provoke the use of physical force. The court stated: "[General Statutes § 53a-19(c)(1) ] provides that '[n]otwithstanding the provisions of subsection (a), a person is not justified in using physical force when (1) with intent to cause physical injury or death to another person, he provokes the use of physical force by such other person, or (2) he is the initial aggressor ....' (Emphasis added.) General Statutes § 53a-19 (c). [A] defendant, therefore, cannot avail himself of the justification provisions of subsection (a) where, under (c), he is proven to have acted with the requisite intent to provoke under (c)(1) or he is proven to be the initial aggressor under (c)(2). Whether [a] defendant did, in fact, act with such intent and whether he was the initial aggressor are critical circumstances in the jury's evaluation of his claim of self-defense." (Emphasis added.) State v. Corchado, supra, 188 Conn. at 664, 453 A.2d 427.

The Corchado court's emphasis on the words "with intent" and "provokes" evinces a linkage between the words. The court's recurrent subsequent use of the words "requisite intent" and "such intent" further cements this linkage. We hold, therefore, that the provocation element of subsection (c)(1) carries with it the requirement that the actor act with the specific intent to elicit the use of...