State v. McMahon

Decision Date14 August 2001
Docket NumberNo. SC,SC
Citation778 A.2d 847,257 Conn. 544
CourtConnecticut Supreme Court
Parties(Conn. 2001) STATE OF CONNECTICUT v. BRIAN K. MCMAHON, JR. 16322

Counsel M. Hatcher Norris, for the appellant (defendant).

Robert M. Spector, deputy assistant state's attorney, with whom, on the brief, was Patricia A. Swords, state's attorney, for the appellee (state).

Norcott, Katz, Palmer, Vertefeuille and Zarella, Js.

Opinion

Katz, J.

The defendant, Brian K. McMahon, Jr., appeals from the judgment of conviction, rendered after a trial to the court, of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a55 (a) (3) 1 and 53a-55a, 2 in connection with a hunting incident that resulted in the death of the victim, Ronald Eckert, Jr. 3

The defendant raises four issues on appeal. First, he claims that the trial court improperly denied his motion to dismiss the manslaughter charge. Specifically, he contends that § 53a-55 (a) (3) is unconstitutionally vague as applied to the facts of this case, because the statute fails to define the phrases ''extreme indifference to human life'' and ''grave risk of death.'' Second, he contends that the trial court unconstitutionally subjected him to double jeopardy by applying the sentence enhancement provision of General Statutes § 53-202k 4 to his sentence for manslaughter in the first degree with a firearm. Third, he claims that the trial court improperly applied the § 53-202k sentence enhancement to both the suspended and nonsuspended portions of his split sentence. Finally, the defendant contends that the trial court improperly found that there was sufficient evidence to convict him of manslaughter in the first degree with a firearm in violation of §§ 53a-55 (a) (3) and 53a-55a. We reject the defendant's claims and, accordingly, affirm the judgment of the trial court.

The trial court reasonably could have found the following facts. At approximately 6:50 a.m. on Sunday, October 25, 1998, the defendant left his home in Coventry with a .44 caliber rifle that he had purchased the week before from a private owner at a local bar. He intended to hunt for deer, despite the fact that hunting season was closed and that he had neither a hunting license nor a deer permit. The defendant entered a section of the woods directly across from the house in which he lived with his wife, his two year old son, his mother, his two brothers and his stepfather. The woods were privately owned, and often used by residents for recreational activities, including walking, hiking, bicycling and motorcycling. 5 The defendant did not have permission from the owner to hunt on the property and, because he was aware that he was hunting illegally, he wore camouflage clothing to avoid detection.

The defendant walked approximately one quarter of one mile into the woods, slightly uphill, on a designated walking trail, and then turned off of the trail and walked another one quarter of one mile. Eventually, he walked down a slope and sat down on a rock facing away from the trail, and waited for deer. After about fifteen minutes, the defendant heard from behind what he thought was a deer snort. He turned and walked approximately fifteen to twenty feet back up the slope in the direction of the sound. The area was thickly wooded, and the fall foliage was full and multicolored. The defendant, who is color-blind, perceived what he thought was a deer, approximately 175 feet away. After a few minutes, the defendant took aim and fired one shot up the slope through the trees. The bullet struck the victim in the back and exited through his chest, lodging in his arm. The victim, a thirty-three year old man, had been walking his dog along the trail and had been either sitting or standing on a rock when the bullet struck him. The defendant immediately heard the victim moan and, suspecting that he had shot someone, the defendant ran back to his house for help.

The defendant and his brother immediately returned to the woods with an all-terrain vehicle and confirmed that the defendant had shot a person. The defendant returned to his house a second time, to ask his wife, a nurse's aide, to return to the woods with him. She did so and when they arrived back at the victim's location, she could not detect the victim's pulse. Thereafter, the defendant returned to his house for a third time, by which time, his stepfather had called the Coventry police department for assistance. Although a helicopter arrived and transported the victim from the scene, he had been on his back where he had fallen for some time 6 and he died as a result of the gunshot wound.

At trial, the defendant admitted that he was hunting on private property without the owner's permission, on a Sunday, without a license, a deer permit, or the required blaze orange outerwear, in full autumn foliage, and that he is color-blind. Nevertheless, he claimed that what had transpired in the woods was simply a terrible hunting accident, and that he had not acted with sufficient recklessness to be convicted of manslaughter. At the conclusion of the state's case, the defendant moved to dismiss the manslaughter charge, claiming that, although criminally negligent homicide might have been an appropriate charge, manslaughter was not. The trial court deferred any action on the motion to dismiss until the conclusion of the case, at which time it denied the motion. The trial court thereafter found the defendant guilty on all nine counts of the first part of the substitute information.

Thereafter, on the second part of the information, the trial court found that the defendant had used a firearm in the commission of a class Bfelony in violation of § 53-202k, and enhanced his sentence accordingly. The court sentenced the defendant for his conviction of manslaughter in the first degree with a firearm to a term of thirty years incarceration, execution suspended after fourteen years, and five years probation. The court subsequently applied the § 53-202k five year sentence enhancement to both the suspended and nonsuspended portions of the split sentence. Accordingly, the trial court sentenced the defendant to a total effective sentence of thirty-five years incarceration, execution suspended after nineteen years, and five years probation. 7 Additional facts will be provided as necessary.

I.

The defendant first contends that the trial court improperly denied his motion to dismiss the manslaughter charge on the grounds that § 53a-55 (a) (3) is unconstitutionally vague as applied to his conduct 8 and, therefore, violates his rights to due process under the federal and state constitutions. 9 Specifically, the defendant claims that, as a result of the legislature's failure to define the phrases ''extreme indifference to human life'' and ''grave risk of death'' in § 53a-55 (a) (3), he had no warning of the statute's application to the facts in this case, and was subjected to the statute's arbitrary and discriminatory application. The state, in contrast, claims that the trial court properly denied the defendant's motion to dismiss, contending that the legislature's failure to define specific terms in the statute does not render § 53a-55 (a) (3) unconstitutionally vague.

We conduct our review of this claim mindful that ''legislative enactments carry with them a strong presumption of constitutionality, and that a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt.'' Beccia v. Waterbury, 192 Conn. 127, 133, 470 A.2d 1202 (1984); State v. Wilchinski, 242 Conn. 211, 217±n18, 700 A.2d 1 (1997). We conclude that the defendant has failed to meet that burden.

''[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'' Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983); State v. Wilchinski, supra, 242 Conn. 219; State v. DeFrancesco, 235 Conn. 426, 443, 668 A.2d 348 (1995); State v. Indrisano, 228 Conn. 795, 802, 640 A.2d 986 (1994). ''[The doctrine] embodies two central precepts: the right to fair warning of the effect of a governing statute or regulation and the guarantee against standardless law enforcement.'' State v. Schriver, 207 Conn. 456, 459±n60, 542 A.2d 686 (1988). The United States Supreme Court has emphasized that ''the more important aspect of the vagueness doctrine is not actual notice, but . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.'' (Internal quotation marks omitted.) Kolender v. Lawson, supra, 357±n58; State v. Schriver, supra, 460. Thus, ''[i]n order to surmount a vagueness challenge, 'a statute [must] afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited' ''; State v. Schrivener, supra, 460; and must not '' 'impermissibly [delegate] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.' '' Id.; see Grayned v. Rockford, 408 U.S. 104, 108±n109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Finally, ''[i]f the meaning of a statute can be fairly ascertained a statute will not be void for vagueness . . . for [i]n most English words and phrases there lurk uncertainties.'' (Internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 778, 695 A.2d 525 (1997). ''[T]he statute must contain some core meaning within which the defendant's actions clearly fall.'' State v. Wilchinski, supra, 220. ''References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute's meaning to determine if it gives fair warning.''...

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