State v. Maselli

• Citation: 182 Conn. 66,437 A.2d 836
• Court: Supreme Court of Connecticut
• Decision Date: 12 January 1981
• Parties: STATE of Connecticut v. Matthew MASELLI.

Page 836

437 A.2d 836

182 Conn. 66

STATE of Connecticut v. Matthew MASELLI.

Supreme Court of Connecticut.

Argued May 13, 1980.

Decided Aug. 12, 1980.

Certiorari Denied Jan. 12, 1981.

See 101 S.Ct. 868.

Joette K. Rubin, Asst. Public Defender, with whom were John R. Williams, New Haven, and, on the brief, Jerrold H. Barnett, Public Defender, for appellant (defendant).

Linda K. Lager, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and John J. Kelly, Asst. State's Atty., for appellee (state).

Before COTTER, C. J., and BOGDANSKI, PETERS, PARSKEY and DAVID M. SHEA, JJ.

DAVID M. SHEA, Associate Justice.

After a jury trial the defendant was found guilty of manslaughter in the first degree in violation of General Statutes § 53a-55 as a lesser offense included in the charge of murder in violation of General Statutes § 53a-54a(a). In this appeal the defendant claims error upon three grounds: (1) that the two kinds of manslaughter in the first degree submitted to the jury are not properly included in the charge of intentional murder set forth in the indictment; (2) that the charge to the jury referring to the defendant's interest in the outcome of the trial prejudiced the defendant and infringed upon his constitutional right to testify in his own behalf; and (3) that the charge upon the element of intent, which referred to the presumption that a person intends the natural consequences of his acts, violated the principles of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

There is little dispute about the facts which the jury might reasonably have found, because most of the evidence concerning the bizarre circumstances of this homicide came from the testimony of the defendant.

In the early morning hours of December 10, 1975, the defendant shot and killed the driver of a taxicab which he had engaged to transport him from Stratford to visit a friend in Fairfield. The defendant was the only passenger in the cab and he fired eight bullets from a .32 caliber semiautomatic revolver at close range, six of which struck the victim in the head, face and neck. The taxicab, which had been traveling west on the Wilbur Cross Parkway in Woodbridge, hit a center guard rail and finally came to rest against a tree on the side of the highway. Except for a small cut and a minor abrasion, the defendant was not injured in the crash.

The defendant claimed that he had shot the victim in self-defense as the cab was proceeding along the highway. He testified that after an evening of discussions with several associates in his business of promoting concerts and a quarrel with his girlfriend, he called a taxicab sometime after midnight in order to visit a friend who lived on route 59 near Fairfield. When the taxicab arrived, he sat in the front seat with the driver. Because commercial vehicles are not ordinarily permitted on the Merritt Parkway, the defendant said he was a policeman and, therefore, could use that highway.

As they proceeded east on the Merritt Parkway, the victim and the defendant engaged in a conversation. Assuming that the defendant was a policeman, the victim asked if he was armed. The defendant said he had a .32 caliber automatic. The victim said he had a .44 magnum in the cab.

After a half hour of driving easterly, the defendant noticed that they had been going in the wrong direction and had reached New Haven. The driver stopped at a phone booth and the defendant telephoned his friend and found that they should have gone westerly toward route 59 rather than easterly toward exit 59.

After the taxicab was turned around to proceed in the opposite direction the conversation resumed. The defendant testified that the driver appeared depressed but that his own mood was optimistic. The driver said something to the effect that there was no hope for the world. The defendant remarked, "Only the devil talks like that." The driver responded, "I am the devil" and reached to his left side with his right hand to grasp what the defendant imagined was his .44 magnum. The defendant testified that when he saw the pistol in the driver's right hand pointing in his general direction, he drew his own gun, struck the driver's right hand which held the pistol and fired the entire clip of bullets in his own weapon at the victim.

An examination of the taxicab by the police at the scene disclosed a pellet air pistol capable of firing BB shot lying near the left foot of the victim. There was testimony that the victim kept such a gun in his taxicab.

I

The claim of the defendant that the court erred in charging the jury upon the lesser included offense of manslaughter in the second degree was not the subject of any exception taken at the trial, as required by Practice Book, 1978, § 315. We must, nevertheless, consider the matter because the grounds relied upon, that indictment did not inform the defendant of this charge and that the evidence was insufficient to warrant its submission, involve a claim of deprivation of a fundamental constitutional right and a fair trial. ¹ State v. Troynack, 174 Conn. 89, 98, 384 A.2d 326 (1977); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

We have recently held that by virtue of General Statutes § 53a-45(c) ² a murder indictment is deemed to notify a defendant that upon the trial he may be found guilty of homicide in any lesser degree than that charged. State v. Rodriguez, 180 Conn. 382, 429 A.2d 919 (1980). It is well established that the statement of the principal charge in the indictment or information constitutes notice of any lesser included offense. Id., 180 Conn. 402, 429 A.2d 919, see Paterno v. Lyons, 334 U.S. 314, 320-21, 68 S.Ct. 1044, 1047, 92 L.Ed. 1409 (1948).

In charging upon manslaughter in the first degree as a lesser offense included in the murder indictment, the trial court instructed the jury that the defendant would be guilty of that crime (1) if with intent to cause serious physical injury to the victim he caused his death, as provided in subsection (1) of General Statutes § 53a-55, or (2) if under circumstances evincing an extreme indifference to human life, he recklessly engaged in conduct which created a grave risk of death to the victim and thereby caused his death, as provided in subsection (a)(3). ³

Despite the defendant's complex argument to the contrary, we conclude that an intention to cause "serious physical injury" would encompass the more culpable mental state of intending to inflict the ultimate damage of death upon a person. See General Statutes § 53a-3(4); Webster, Third New International Dictionary. Furthermore, we have declared in the context of homicide "that an offense that would be a lesser included offense but for its requirement of a less culpable state of mind than that required for the greater, will be deemed a lesser included offense." State v. Rodriguez, supra, 180 Conn. 408, 429 A.2d 919. Manslaughter in the first degree as defined in subsection (a)(1) of § 53a-55 is a lesser included offense in a murder indictment.

The defendant's contention that manslaughter in the first degree based upon "reckless" conduct as set forth in subsection (a)(3) of § 53a-55 is not included in a charge of murder was explicitly rejected in State v. Rodriguez, supra, 180 Conn. 408, 429 A.2d 919, where we overruled State v. Troynack, supra, and distinguished State v. Ruiz, 171 Conn. 264, 269-72, 368 A.2d 222 (1976), upon which the defendant has relied. In view of General Statutes § 53a-45(c), which allows a defendant indicted for murder to be found guilty of homicide in a lesser degree than that charged, it is clear that any lesser degree of homicide may be considered by the trier, subject to the requirements of State v. Whistnant, 179 Conn. 576, 585, 427 A.2d 414 (1980), that the evidence does support a conviction of the lesser included offense and that the elements differentiating the lesser offense are sufficiently in dispute to justify finding the defendant innocent of the greater offense but guilty of the lesser. State v. Rodriguez, supra.

The defendant has made no claim in his brief that the evidence would not support a conviction of manslaughter in the first degree under both subsection (a)(1) and subsection (a)(3) of § 53a-55. During argument, however, the question did arise of the sufficiency of the evidence to support a finding that the defendant's avowedly intentional shooting of the victim constituted "reckless" conduct creating a grave risk of death to the victim under circumstances evincing an extreme indifference to human life, as proscribed by subsection (a)(3).

It appears that the defendant claimed neither insanity nor extreme emotional disturbance at the trial, but sought acquittal solely upon the ground of self-defense. The trial court instructed the jury upon the use of deadly physical force in defense of the person in accordance with General Statutes § 53a-19, charging that "(i)t is the facts as they reasonably appear to the defendant at the time he acted which measure the existence of the right of self-defense." The jury might well have concluded that for the defendant to have believed under the circumstances revealed by the evidence that the victim was about to use deadly force upon him so that it was necessary to fire eight shots at point blank range was such a gross deviation from the standard of conduct that a reasonable person would observe in the situation as to constitute recklessness. General Statutes § 53a-3(13).

Since we have concluded that the court properly submitted to the jury manslaughter in the first degree in violation of both subsections (a)(1) and (a)(3) of § 53a-55, we are not concerned with the further question which the defendant raises of the failure of the verdict to specify which of these subsections the jury relied upon. See Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1957); Leary v. United States, 395 U.S. 6,...