State v. Miller

• Court: Supreme Court of Connecticut
• Writing for the Court: ARMENTANO; ARTHUR H. HEALEY
• Citation: 186 Conn. 654,443 A.2d 906
• Parties: STATE of Connecticut v. Jonathan MILLER.
• Decision Date: 13 April 1982

Page 906

443 A.2d 906 186 Conn. 654 STATE of Connecticut
v.
Jonathan MILLER. Supreme Court of Connecticut. Argued Jan. 14, 1982.
Decided April 13, 1982.

Page 907

[186 Conn. 655] Joette Katz, Asst. Public Defender, with whom, on the brief, was Jerrold H. Barnett, Public Defender, for appellant (defendant).

John M. Massameno, Asst. State's Atty., with whom, on the brief, were Francis M. McDonald, Jr., State's Atty., and Paul E. Murray, Asst. State's Atty., for appellee (state).

Before [186 Conn. 654] PETERS, HEALEY, PARSKEY, ARMENTANO and SHEA, JJ.

[186 Conn. 655] ARMENTANO, Associate Justice.

The defendant appeals from a conviction of assault in the first degree in violation of General Statutes § 53a-59(a)(1), for which he was sentenced to a term of not less than nine nor more than eighteen years. The defendant admits to having "shot" the victim outside the Naugatuck Valley Mall in Waterbury on December 17, 1977, with a .38 caliber handgun. At trial, he claimed that either the handgun discharged accidently, or he acted in self defense.

The jury could have reasonably found the following facts: On December 17, 1977, the defendant, his friend, Winston Dwyer, and Selena Saunders, a girlfriend of the defendant, traveled to the Naugatuck Valley Mall to visit Saunders' sister who worked at a mall store. Soon after arriving at the mall, they encountered the victim, a former boyfriend of Saunders, whom she introduced to the men. Following this brief encounter, the victim departed from the threesome, but subsequently followed[186 Conn. 656] them around the mall at a distance. After a time the victim approached the defendant and asked him to "step outside" the mall with him because the defendant had "disrespected" him, presumably by dating Saunders. In front of Saunders, Dwyer and some onlookers, the pair spoke loudly to one another, the victim repeating his request that the defendant leave the mall with him, and the defendant refusing the request. After a few minutes the defendant and Dwyer briefly stepped away from the others, during which time the defendant took possession of Dwyer's .38 caliber handgun. The defendant held the gun in his hand concealing it within the folds of the knee length coat he was wearing. He then accompanied the victim outside followed by Saunders, Dwyer, and onlookers, some of whom may have been friends of the victim. Shortly after leaving the mall, the defendant shot the victim in the head with the gun he was carrying. The victim was not armed. As a result of the shooting the victim was in a semicomatose state through the time of trial, with scant hope of recovery. He had been a professional lightweight boxer.

To prove the charge of assault in the first degree, the state was required to prove, beyond a reasonable doubt, that the defendant, with intent to cause serious physical injury to another person, caused such injury by means of a deadly weapon or a dangerous instrument. General Statutes § 53a-59(a)(1). ¹ The defendant does not dispute that his acts caused serious physical injury by means of a deadly weapon.

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[186 Conn. 657] The defendant claims ² that the trial court erred (1) in charging the jury on the elements of self defense in two respects, on specific intent in two respects, and on the credibility of the defendant's testimony; (2) in denying his motion to prevent the state from impeaching the defendant's credibility by introducing evidence of a prior felony conviction; and (3) in permitting the state to question the defendant on cross examination regarding his prior gun ownership.

I JURY INSTRUCTIONS

The defendant's claims of error in the jury instructions arise for the first time on appeal. In order properly to preserve for appeal a claimed error in the trial court's charge to the jury, a party must take an exception when the charge is given that distinctly states the objection and the grounds therefor. Practice Book §§ 315, 854, 3060F(c)(1), (2); State v. Nerkowski, --- Conn. ---, ---, [186 Conn. 658] 440 A.2d 195 (42 Conn.L.J., No. 53, pp. 3, 4) (1981); State v. Topciu, --- Conn. ---, 438 A.2d 803 (42 Conn.L.J., No. 30, p. 15) (1981); cf. Fed.R.Crim.Proc. 30. "The purpose of the rule is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials." State v. Packard, --- Conn., ---, ---, 439 A.2d 983 (42 Conn.L.J., No. 48, pp. 5, 12) (1981); see Practice Book § 860; Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977).

This court need not consider claims not distinctly raised at trial and not arising subsequent thereto. E.g., Practice Book § 3063; State v. Delafose, --- Conn. ---, 441 A.2d 158 (43 Conn.L.J., No. 23, pp. 6, 7) (1981); State v. Evans, 165 Conn. 61, 67, 327 A.2d 576 (1973). Such claims of error are considered waived. State v. Evans, supra, 66, 327 A.2d 576. Only in the most exceptional circumstances will this court consider even a constitutional claim not properly raised and decided in the trial court. Practice Book § 3063; State v. Gooch, 186 Conn. 17, 18, 438 A.2d 867 (1982); State v. Packard, supra, 9, --- Conn. ---, 439 A.2d 983, State v. Evans, supra, 165 Conn. 69, 327 A.2d 576; cf. Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037 (1941); Frommhagen v. Klein, 456 F.2d 1391, 1395 (9th Cir. 1972). "Contrary to the impression which seems to prevail in some quarters, it is not true that defense counsel in criminal cases may through neglect, inattention or as a trial strategy refrain from making proper objection or raising in the trial court any available constitutional defenses, confident that if the outcome of the trial proves unsatisfactory without making objections and taking exceptions and raising any available constitutional issue they may still prevail by assigning error or raising the constitutional issue for the first time on the appeal." State v. [186 Conn. 659] Evans, supra, 165 Conn. 67, 327 A.2d 576; see State v. Williams, 173 Conn. 545, 560, 378 A.2d 588 (1977). Exceptional circumstances are presented only when (1) a new constitutional right not readily foreseeable arises between the time of trial and of appeal; or (2) the record is sufficiently complete to support a claim that the defendant was denied a fundamental constitutional right and a fair trial. State v. Evans, supra, 165 Conn. 70, 327 A.2d 576; see, e.g., State v. Gunning, --- Conn. ---, ---, 439 A.2d 339 (42 Conn.L.J., No. 37, pp. 9, 10) (1981); State v. Trent, --- Conn. ---, ---, 438 A.2d 796 (42 Conn.L.J., No. 30, pp. 11, 13) (1981); State v. Williams, --- Conn. ---, ---, 438 A.2d 80 (42 Conn.L.J., No. 8, pp. 29, 30) (1980).

Page 909

The defendant asserts that each of his claims of error in the jury instructions presents exceptional circumstances under the second of the Evans tests. Accordingly, to determine whether we will reach the merits of each claim, we will examine whether it poses a question of fundamental constitutional dimension. State v. Gooch, supra, 186 Conn. 18, 438 A.2d 867. A

The defendant claims two errors in the jury charge on the elements of self defense. The defendant first asserts that the trial court erred in giving a dictionary, rather than the statutory, definition of "deadly physical force." General Statutes § 53a-19(a) establishes the justification of self defense in different terms depending on whether deadly physical force is used by the victim or the defendant. Moreover, a duty to retreat arises when deadly physical force is used. General Statutes § 53a-19(b). ³ Although no request to charge [186 Conn. 660] appears on the record, and the defendant did not take exception to this aspect of the charge, ⁴ the defendant asserts that this error denied him due process of law guaranteed by the fifth and fourteenth amendments to the United States constitution, and the constitution of Connecticut, article first, § 8. 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, 18 L.Ed.2d 1019 (1967); State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). This fundamental constitutional right [186 Conn. 661] includes proper jury instructions on the elements of self defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the assault was not justified. See General Statutes § 53a-12(a). Therefore, we will consider the merits of the claim under Evans and the defendant's second claim of error with respect to the self defense instructions.

General Statutes § 53a-3(5) provides that when the term "deadly physical force" is used in the Connecticut penal code it "means physical force which can be reasonably expected to cause death or serious physical injury." ⁵ After stating the statutory elements of self defense, the trial court

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defined "deadly force" as "that force which is liable or certain to cause death." "A charge to the jury will not be critically dissected for the purpose of discovering possible inaccuracies of statements, but the charge is to be considered, rather, as to its probable effect upon the jury in guiding them to a correct verdict in the case." State v. Cannon, --- Conn. ---, ---, 440 A.2d 927 (43 Conn.L.J., No. 6, pp. 23, 26) (1981); see, e.g., State v. Perez, --- Conn. ---, ---, 439 A.2d 305 (42 Conn.L.J., No. 35, pp. 8, 9) (1981). Although usually the preferable course is not to deviate from the statutory definition, in the present case, where the "physical force" used is a gun, the substitution of language did not deprive the defendant of due process because the definition given did not materially differ from the statutory definition. Cf. State v. Spates, 176 Conn. 227, 237, 405 A.2d 656 (1978), aff'd sub nom., Spates v. Robinson, 179 Conn. 381, 426 A.2d 776 (1979). [186 Conn. 662]...