State v. Sawyer, 14650

• Decision Date: 31 August 1993
• Docket Number: No. 14650,14650
• Citation: 630 A.2d 1064,227 Conn. 566
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Bernard K. SAWYER.

Page 1064

630 A.2d 1064

227 Conn. 566

STATE of Connecticut v. Bernard K. SAWYER.

No. 14650.

Supreme Court of Connecticut.

Argued April 28, 1993.

Decided Aug. 31, 1993.

Harry Weller, Asst. State's Atty., with whom were Corinne Klatt, Asst. State's Atty., and, on the brief, John A. Connelly, State's Atty., for appellant (state).

Lauren Weisfeld, Asst. Public Defender, for appellee (defendant).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and KATZ, JJ.

CALLAHAN, Associate Justice.

The dispositive issue in this appeal is whether the trial court properly instructed the jury that, during the course of its deliberations concerning greater and the lesser included offenses, it must unanimously agree to acquit of the greater offense of murder before it could go on to consider the lesser included offenses of manslaughter.

The defendant, Bernard K. Sawyer, was charged in a substitute information with the crime of murder in violation of General Statutes § 53a-54a. After a jury trial, he was convicted of the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3). He was sentenced to a term of imprisonment of twenty years. Following his conviction, the defendant appealed to the Appellate Court.

In State v. Sawyer, 29 Conn.App. 68, 614 A.2d 471 (1992), the Appellate Court reversed the defendant's conviction and ordered a new trial. We granted the state's petition for certification to appeal to this court from the decision of the Appellate Court; State v. Sawyer, 224 Conn. 917, 617 A.2d 172 (1992); limited to three issues. Because we disagree with the Appellate Court's decision regarding the first certified question, it is unnecessary to address the other two. The first question is: "(1) Did the Appellate Court violate this court's express requirements of State v. Aparo, 223 Conn. 384, 388 (1992), State v. Daniels, 207 Conn. 374, (1988), and State v. Stankowski, 184 Conn. 121 (1981), that Connecticut juries render unanimous verdicts, when it adopted a jury instruction which permits a jury to render a verdict on a lesser included offense when [it is] 'unable to agree' on the greater offense?" ¹ Id. We conclude that it did and reverse the judgment of the Appellate Court.

The Appellate Court accurately concluded that the jury could reasonably have found the following facts. "On February 17, 1989, the defendant was in his apartment when he was surprised by the arrival of his girlfriend, Ernestine Watkins. Also at the apartment were the victim and Franklin Damon. After Watkins had hugged and kissed the victim, she asked him for a ride. The defendant followed them and got into the back seat of the victim's automobile. Watkins refused to get into the car and told the defendant, with whom she was angry, not to go with her, and that he should remain behind while she went to visit her uncle. The defendant then exited the car and the victim left with Watkins.

"After waiting for more than an hour for Watkins to return, the defendant walked to a bar to look for her. At the bar, he observed someone hide a package near a dumpster. He retrieved the package and discovered a .357 magnum pistol that contained a live round in the chamber. He kept the gun and continued his search for Watkins. Upon learning that she had not visited her uncle, the defendant returned home. A short time later he observed the victim's car, with the victim in the driver's seat and Damon in the front passenger seat. He jumped into the back seat demanding to know where Watkins was. After the victim told him that she would return shortly, the defendant demanded that the victim drive him to where Watkins was. When the victim refused, the defendant put the gun to the back of the victim's neck, and pulled back the hammer. The victim again refused, stating that he had promised to give Damon a ride home. The victim bowed his head slightly and the gun discharged, sending a bullet through his left carotid artery and killing him.

"Immediately after the gun discharged, the defendant said, 'Oh my God, what have I done, I didn't mean to do it,' and ran from the scene. He turned himself in to the police the following day and handed over the weapon used in the crime." State v. Sawyer, supra, 29 Conn.App. at 70-71, 614 A.2d 471.

At trial, both the state and the defendant offered evidence on the issue of whether the defendant had intentionally applied pressure to the gun's trigger. Final arguments similarly focused on whether the killing of the victim had been intentional.

Before final arguments, the defendant filed a request that the court instruct the jurors that "if they find that the elements of murder have not been proven beyond a reasonable doubt, or if they are unable to agree unanimously that the elements of murder have been so proved, they may then consider whether the defendant is guilty of the lesser included offense of manslaughter in the first degree and/or manslaughter in the second degree." (Emphasis added.) The court did not instruct the jury pursuant to the defendant's request. Rather, after charging on the essential elements of murder, the court advised the jury to consider the lesser included offenses of manslaughter only if it came to the conclusion that the state had failed to prove the elements of murder beyond a reasonable doubt. ² The court then instructed the jury as to the essential elements of the two lesser included offenses of manslaughter, namely, manslaughter in the first degree in violation of § 53a-55(a)(3) and manslaughter in the second degree in violation of General Statutes § 53a-56. After doing so, the court reasserted the sequence to be followed by the jury in its deliberations, restating to the jury that it should consider the lesser included offense of manslaughter in the first degree only if it came to the conclusion that the defendant was not guilty of murder and should consider the lesser included offense of manslaughter in the second degree only if it came to the conclusion that the defendant was not guilty of manslaughter in the first degree. ³ The defendant took an exception to the court's refusal to give his requested charge. ⁴ Thereafter, during its deliberations, the jury sent a note to the court. The note read: "With no unanimous decision on the charge of murder or manslaughter in the first degree, but unanimous as to guilty on one count or the other, please advise." The court discussed with counsel for the state and the defendant the proper instruction to be given to the jury in response to the note. It was the court's view that it must instruct the jury that, if it could not reach a unanimous agreement to acquit the defendant of the charge of murder, it could not proceed to consider the lesser included offense of manslaughter in the first degree and the court would have to declare a mistrial. ⁵ The defendant disagreed.

After its discussion with the parties, the court brought the jury into the courtroom and instructed it as follows: "Well, I'm just going to make this brief statement to see if it helps you out. That in the sequence of events in your decision as to the charges that I gave to you the other day, of murder, manslaughter in the first degree or manslaughter in the second degree. The first thing that you must determine is on the charge of murder. Now, you have to come to a unanimous decision on that charge of either guilty or not guilty. And, obviously, if you found your verdict were guilty then you, obviously, wouldn't go to any lesser included offense.

"You'd have to have unanimous decision of not guilty on the charge of murder before you then started to consider the charge of manslaughter in the first degree and thereon. So, you've got to come to decision first of all, unanimously, one way or the other on the charge of murder before you at all consider the lesser included offense of manslaughter in the first degree. And, again, I am not referring to manslaughter in the second degree because that is not included in your note.

"So, if it helps you out at all, again, you have to come to a decision on the crime as charged, murder, before you go to the lesser included offense of manslaughter. It has got to be unanimous, either guilty or not guilty on the charge of murder before [you go on]. And, obviously, if it were guilty to murder you don't go to manslaughter in the first degree. So, in order to get to manslaughter in the first degree you must, unanimously, obviously, find the defendant not guilty of murder. And if you can't do that then send me a note and I'll see what else I can tell you."

The jury subsequently acquitted the defendant of murder and convicted him of the lesser included offense of manslaughter in the first degree. The verdicts were unanimous.

Following his conviction, the defendant appealed to the Appellate Court, claiming that the trial court had improperly instructed the jury that it had to be unanimous in its verdict on the greater offense of murder before it could consider the lesser offense of manslaughter in the first degree. After an initial oral argument before the Appellate Court, that court ordered supplemental briefing and reargument en banc on the issue of the proper jury instruction to be given by the trial court if the crime with which the defendant is charged requires an instruction on lesser included offenses.

Before the Appellate Court, the defendant claimed that the trial court had improperly given an acquittal first transitional instruction, i.e., that the jury was incorrectly instructed not to consider the lesser included offenses until it had unanimously found the defendant not guilty of the greater offense of murder. The defendant argued that the proper instruction to guide the jury in its transition from the greater offense to lesser included offenses is a reasonable efforts instruction, which would have allowed the jury to consider lesser included offenses if it was unable to agree on the...