State v. Miller

• Decision Date: 16 February 1995
• Docket Number: No. 13073,13073
• Citation: 36 Conn.App. 506,651 A.2d 1318
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Marion Lee MILLER.

Page 1318

651 A.2d 1318

36 Conn.App. 506

STATE of Connecticut v. Marion Lee MILLER.

No. 13073.

Appellate Court of Connecticut.

Argued Sept. 28, 1994.

Decided Jan. 3, 1995.

Certification Denied Feb. 16, 1995.

Susan M. Hankins, Asst. Public Defender, for appellant (defendant).

Marjorie Allen Dauster, Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (State).

Before EDWARD Y. O'CONNELL, LANDAU and HEIMAN, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals ¹ from the judgment of conviction, after a jury trial, of murder in violation of General Statutes § 53a- 54a, ² felony murder in violation of General Statutes 53a-54c ³ and assault in the first degree in violation of General Statutes § 53a-59(a)(1). ⁴ The jury acquitted the defendant of reckless assault in violation of General Statutes § 53a-59(a)(3).

The defendant claims that the trial court (1) improperly instructed the jury on the law of self-defense and (2) improperly sentenced the defendant on both intentional murder and felony murder. We reverse the judgment in part and remand the case for modification of sentence.

The jury could reasonably have found the following facts. On February 2, 1991, the victim, Joseph Licari, owned and operated Joe's Variety Shop on Whalley Avenue in New Haven. He was eighty years old, in poor health and walked with a cane. He usually worked alone, and a longtime friend, Nicholas Codianni, came to the store every evening to help him close.

At about 8 p.m. on February 2, 1991, the defendant entered the store and soon became involved in an argument over a lottery ticket. The defendant pulled what turned out to be a toy gun from his pocket and announced, "This is a stickup." While Codianni was attempting to knock what he believed to be a real gun from the defendant's hand, Licari took his own pistol from behind the counter and fired toward the defendant, missing him. The defendant and Licari then engaged in a struggle for Licari's gun. Codianni entered the fray, hitting the defendant on the head with a telephone. In the course of the struggle, the defendant and Codianni ended up in the shop's back room where the defendant shot and wounded Codianni. The defendant then returned to the front of the store where he fired the lethal shot at Licari. The defendant left the store after picking up a $50 bill that had fallen to the floor during the struggle.

I

Self-defense was the principal defense offered by the defendant. He contended that he was the victim of an unprovoked attack by Codianni. ⁵ The defendant makes two challenges to the trial court's jury instruction on self-defense. First, that the instruction impermissibly replaced the subjective-objective test contemplated by the self-defense statute ⁶ with a purely objective standard, and, second, that the instruction concerning initial aggression was tantamount to a directed verdict of guilty.

A

The state bears the burden of proving beyond a reasonable doubt that the defendant's actions were not justified as self-defense. State v. Carter, 34 Conn.App. 58, 66, 640 A.2d 610, cert. granted on other grounds, 229 Conn. 919, 644 A.2d 915 (1994). The trial court read the relevant portion of the self-defense statute and then instructed the jury on the definitions of "reasonable" and "reasonable man." ⁷

The standard for determining justification for the use of force is a subjective-objective one. "The statute focuses on the person ... claiming self-defense. It focuses on what he reasonably believes under the circumstances and presents a question of fact. This subsection also makes clear that such a person may not use 'deadly physical force' unless he reasonably believes that the other person is either 'using or is about to use deadly physical force' or is 'inflicting or about to inflict great bodily harm.' " (Emphasis in original.) State v. Corchado, 188 Conn. 653, 663, 453 A.2d 427, (1982). The jury must view the situation from the defendant's perspective. State v. DeJesus, 194 Conn. 376, 389 n. 13, 481 A.2d 1277 (1984). The starting point of a jury's inquiry into whether reasonable force was used by the defendant is whether the defendant believed that deadly force was necessary to repel the attack. The bottom line is that ultimately the defendant's belief must be found to be reasonable. Id., at 390, 481 A.2d 1277.

The defendant focuses on the portion of the instruction in which the trial court defined "reasonable" in terms of what "an ordinary prudent man" might perceive his situation to be. A correct instruction is what this particular defendant, as opposed to the hypothetical ordinary prudent man, believed his situation to be. The defendant, however, lifts the objective portion out of the instruction and views it in isolation. This excision skews the jury charge.

It is axiomatic that a jury charge is to be read as a whole and that individual instructions are not to be judged in artificial isolation from the overall charge. State v. Suggs, 209 Conn. 733, 755, 553 A.2d 1110 (1989); State v. Washington, 15 Conn.App. 704, 713, 546 A.2d 911 (1988). The test is whether the charge as a whole tended to mislead the jury. State v. Quintana, 209 Conn. 34, 44, 547 A.2d 534 (1988); State v. Boone, 15 Conn.App. 34, 55, 544 A.2d 217, cert. denied, 209 Conn. 811, 550 A.2d 1084 (1988).

When we view this instruction as a whole, it is apparent that the trial court correctly charged the jury on the subjective-objective standard. The defendant disregards the subjective portion of the charge and emphasizes the objective portion out of context. The court made it clear that "the test is not what force is actually necessary to protect [the defendant] ... rather the test is what force did he, acting as a reasonable man believe to be necessary under the circumstances." Seven times before and after the objective instruction the court expressly told the jury that unless the defendant reasonably believed that Licari or Codianni or both were about to inflict great harm on him he could not use deadly force in self-defense.

Considered as a whole, the jury charge adequately instructed the jury on self-defense in general, as well as the defendant's subjective belief as to the force Licari was using or was about to use in particular. The jury was informed that it must look at what the defendant himself believed. It was also told to consider whether the defendant's subjective belief that deadly physical force was necessary was ultimately reasonable, i.e., what a person of ordinary prudence and mental physical capacity in the defendant's position would believe. The defendant's belief was not left out of the equation. In directing the jury to consider what the defendant reasonably believed, the court stated the standard more than once in terms of the statute.

A proper self-defense instruction includes both subjective and objective aspects. In the present case, the trial court properly instructed the jury on both aspects.

B

The defendant next claims that the trial court's instruction on the "initial aggressor" aspect of self-defense constituted either a directed verdict of guilty or created a mandatory presumption. ⁸ During its deliberations, the jury sought clarification of the self- charge asking, "When a person is in the process of committing a robbery does he give up his claim to self-defense?" The court gave a supplemental charge. The short answer was "No, he does not give up his right to have [the jury] consider his claim of self-defense."

The court then reread the self-defense statute to the jury, noting that a person is not justified in using physical force when he is the initial aggressor. Addressing the issue of initial aggressor, the court said, "So, as it relates to your question, if you find that the defendant was in the process of committing a robbery, that is, attempting to commit a robbery, because the very nature of the act of robbery, that is, a stealing or attempted stealing by the use of force, you would necessarily have found that the defendant was the initial aggressor.... So, to recap, if you find proven beyond a reasonable doubt that the defendant was attempting to commit a robbery, he would be found to be the initial aggressor and his use of physical force would not have been justified unless he withdrew from the confrontation and effectively communicated his intent to do so to the other party and the other party notwithstanding continued or threatened the use of physical force upon him."

"There is no question that '[t]he standard of review to be applied to a claim of an improper instruction on the elements of self-defense is whether it is reasonably possible that the jury was misled.' ..." (Citations omitted.) State v. Jimenez, 30 Conn.App. 406, 411, 620 A.2d 817 (1993) rev'd on other grounds, 228 Conn. 335, 636 A.2d 782 (1994). "In evaluating the propriety of a supplemental charge, we must examine both the main and supplemental charge as a whole. State v. Williams, 199 Conn. 30, 41, 505 A.2d 699 (1986)." State v. Hopkins, 25 Conn.App. 565, 571, 595 A.2d 911, cert. denied, 220 Conn. 921, 597 A.2d 342 (1991).

The defendant argues that the supplemental instruction concerning initial aggression usurped the role of the jury as trier of fact by presenting it with what amounted to a directed verdict. The defendant notes that one can construct a scenario wherein one attempts robbery without being an initial aggressor. ⁹ Therefore, by telling the jury that someone attempting robbery is perforce the initial aggressor, the court had improperly taken that determination from the jury.

The defendant might have a point if he had been charged with attempted robbery, but he was not. Nor was the court instructing on the technical requirements of such a charge. Rather, the court was responding to the jury's question about whether one abrogates a self-defense claim when he is in the "process of committing a robbery."

At trial, the jury...