State v. Sawyer

• Decision Date: 25 November 1992
• Docket Number: No. 9728,9728
• Citation: 29 Conn.App. 68,614 A.2d 471
• Parties: STATE of Connecticut v. Bernard SAWYER.
• Court: Connecticut Court of Appeals

Page 471

614 A.2d 471

29 Conn.App. 68

STATE of Connecticut v. Bernard SAWYER.

No. 9728.

Appellate Court of Connecticut.

Argued Jan. 15, 1992.

Decided Sept. 8, 1992.

Certification Granted for limited

question Nov. 25, 1992.

Frederick A. Freedman, J., concurred in result and filed opinion.

Foti, J., dissented and filed opinion.

Cretella, J., dissented separately and filed opinion.

Lauren Weisfeld, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

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

Before DALY, EDWARD Y. O'CONNELL, NORCOTT, FOTI, LANDAU, FREDERICK A. FREEDMAN and CRETELLA, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(3). The defendant claims that § 53a-55(a)(3) is unconstitutionally vague as applied, and that the trial court's instructions to the jury were improper. We reverse the judgment of conviction.

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 girl friend, 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.

The defendant's claim that the trial court improperly instructed the jury that it had to be unanimous in its verdict on a greater offense before it could consider a lesser offense is dispositive of this appeal.

The issue here is whether a trial court should instruct the jury either (1) that it must unanimously find the defendant not guilty of the greater offense before it may consider a lesser included offense (acquittal first instruction), or (2) that, if it is unable to agree unanimously that the defendant is guilty of the greater offense, it may then consider a lesser included offense (reasonable efforts instruction). The defendant requested a reasonable efforts instruction but the trial court gave an acquittal first instruction.

The state argues that this issue was decided in State v. Stankowski, 184 Conn. 121, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 588 (1981). We do not agree that Stankowski decided this issue. None of the issues raised in the Stankowski appeal involved the proper jury instruction for consideration of a lesser included offense. ¹ The state, however, appears to interpret the Supreme Court's quotation of the jury charge at issue in Stankowski as "implicit approval of the charge."

If Stankowski implicitly approved the acquittal first instruction, there is nothing for this court to consider and any further discussion is unwarranted. It is well established that it is not our function as an intermediate appellate court to overrule Supreme Court authority. D'Arcy v. Shugrue, 5 Conn.App. 12, 29, 496 A.2d 967, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985). We, however, do not agree with the state that Stankowski declares the law, even by implication, on this subject.

In Stankowski, the court merely quoted the jury charge at issue in toto in order to address the challenge to the Chip Smith charge. Appellate opinions serve as authority for only those issues actually decided by the court. State v. Darwin, 161 Conn. 413, 421, 288 A.2d 422 (1971). In State v. DellaCamera, 166 Conn. 557, 353 A.2d 750 (1974), our Supreme Court was faced with a similar situation involving implicit approval of General Statutes § 54-86b. In that case, the court enunciated, "that a case or a series of cases which merely mention or apply a statute without questioning its validity cannot serve as binding precedent on that issue." (Emphasis added.) Id., at 560, 353 A.2d 750. Although DellaCamera involved the implicit approval of a statute, the reasoning behind the court's finding that that precedent had not been established is directly applicable to this case. Because our Supreme Court in Stankowski did not consider whether the jury charge was proper insofar as it may have touched on the procedure to be followed by the jury in reaching the lesser included offense, that issue remains one of first impression in this state.

A survey of the cases discloses that other jurisdictions are divided on the subject, some requiring the acquittal first instruction, ² and others mandating the reasonable efforts instruction. ³ Good arguments exist for either instruction and we would be faced with a Scylla and Charybdis choice were it not for the existence of a third option created in United States v. Tsanas, 572 F.2d 340, 346 (2d Cir.), cert. denied, 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84 (1978).

Following a thorough discussion of both instructions, the Second Circuit Court of Appeals articulated that "[w]ith the opposing considerations thus balanced, we cannot say that either form of instruction is wrong as a matter of law. The court may give the one that it prefers if the defendant expresses no choice. If he does, the court should give the form of instruction which the defendant seasonably elects. It is his liberty that is at stake...." Id. Further, other federal jurisdictions have adopted this optional approach. ⁴

This approach appeals to us because it allows the defendant to gamble everything on the greater charge, hoping for an acquittal or at least a hung jury, or it allows the defendant, at his option, to hedge his bet by gambling that the jury, as a result of a compromised verdict, may find him guilty of a lesser charge. Because it is the defendant's liberty that is involved, we agree with the court in Tsanas that he should be allowed to make the choice. If the defendant fails to make a choice, however, the court may then give whichever instruction it feels appropriate under the circumstances because neither is wrong as a matter of law. Id.

There are many advantages to the approach sanctioned in Tsanas. First, this approach may avoid many inherent problems of the acquittal first instruction. One such problem is the enhanced risk of a hung jury. If the jury is unable to reach a unanimous verdict on the greater offense without being allowed to consider the lesser included offenses, the court is forced to declare a mistrial. "Because the jury cannot discuss lesser included offenses until agreeing to acquit on the charged offense, jurors cannot rectify substantial disagreement by compromising on a lesser offense composed of elements not disputed by the defendant or by the jurors. These restraints on compromise discussions thus fail to ameliorate the hung jury problem." M. Craig, "Improving Jury Deliberations: A Reconsideration of Lesser Included Offense Instructions," 16 U.Mich.J.L.Ref. 561, 568 (1983). Thus, by giving the defendant the option to request either instruction, in those cases in which the reasonable efforts instruction is chosen, a hung jury is less likely to occur.

Second, the optional approach espoused by the court in Tsanas further removes the very real danger that "[i]f the jury is heavily for conviction on the greater offense, dissenters favoring the lesser may throw in the sponge rather than cause a mistrial that would leave the defendant with no conviction at all, although the jury might have reached sincere and unanimous agreement with respect to the lesser charge." Id. Because the optional approach gives the defendant the choice of which instruction he or she prefers, the defendant is afforded the fullest possible protection and fairness. Such protection is both warranted and mandated by our system of jurisprudence which is founded on the interests of fair trials and just judgments. As stated in Tsanas, "[i]t is [the defendant's] liberty that is at stake, and the worst that can happen to the Government under the less rigorous instruction is his readier conviction for a lesser rather than a greater crime." Id. Furthermore, the optional approach safeguards the criminal defendant's valued right to have his trial completed by a particular tribunal. See United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); State v. Van Sant, 198 Conn. 369, 376, 503 A.2d 557 (1986).

Additionally, all of the reasons...